Consolidated Freightways Corp.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1252 (N.L.R.B. 1988)

1252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Consolidated Freightways Corporation of Delaware
and Paul Hammontree. Case 26-CA-11799
May 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On May 18, 1987, Administrative Law Judge
Nancy M. Sherman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply 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 briefs and has
decided to affirm the judge's rulings, fmdings, r and
conclusions only to the extent consistent with this
Decision and Order.
Respondent Consolidated Freightways is en-
gaged in the interstate transportation of freight
from, inter alia, a facility in Memphis, Tennessee.
At all relevant times, the Respondent's employees
in Memphis have been represented by Highway
and Local Motor Freight Employees Local Union
No. 667, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union). The Respondent
and the Union have been bound at all relevant
times by the National Master Freight Agreement
and the Southern Conference Area Over-the-Road
Motor Freight Supplement Agreement, which have
permitted grievances not settled at the local level
to be submitted to the Southern Multi-State Griev-
ance Committee, composed of an equal number of
employer and union representatives. The parties
are bound by any decision of a majority of the
Multi-State Committee. In case of a "deadlock"
(i.e., a tie vote on the merits of a grievance), the
grievance automatically proceeds to the Southern
Area Grievance Committee, which also consists- of
an equal number of employer and union representa-
tives. A majority decision of the Area Committee
is final and binding on the parties.
Early in 1982, the Respondent established a
number of "peddle runs" out of the Memphis ter-
minal. 2 Soon afterward, the Respondent and the
1 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 Peddle runs are those that begin and end at the point of origin in the
same tour of duty or within a radius of 100 miles of the center of Mem-
Union entered into an oral agreement under which
peddle runs would be posted for bids with sched-
uled departure times, and under which the Union
agreed to relinquish any claim based on seniority to
a choice of destinations on peddle runs. 3 Under
that side agreement, if a driver filed a grievance
claiming a choice of destinations, the Union was to
withdraw the case and inform the driver of the
terms of the working agreement.4 Between 1982
and 1985 the Union did withdraw a number of
such peddle-driver-filed grievances.
By letter dated February 26, 1985, however,
Union President Jimmy Carrington advised the Re-
spondent:
This is to inform you that if Local 667 and
Consolidated Freightways have any agree-
ments that they become null and void at the
end of our existing contract, March 31, 1985.
. . . we are willing to meet and discuss any
dispatch procedures, work rules or etc. that
we have had in the past at your convenience.
The Respondent did not reply to that letter.
On April 1, 1985, a new collective-bargaining
agreement went into effect. Article 6 of the new
agreement contained the following provisions:
Section 1.
Maintenance of Standards
The Employer agrees, subject to the follow-
ing provisions, that all conditions of employ-
ment in his individual operation relating to
. . . hours of work. . . and general working
conditions shall be maintained at not less than
the highest standards in effect at the time of
this Agreement. . . .
Local Standards
(a) The Local Unions and the Employers
shall, within one hundred eighty (180) days
following ratification of this Agreement, iden-
tify and reduce to writing, and submit to the
appropriate Conference Joint Area Committee,
those local standards and conditions practiced
under this Article. Those local standards and
conditions previously practiced hereunder
which are not so submitted shall be deemed to
have expired.
phis. "Regular runs," by contrast, are long-haul routes. Only peddle runs
are at issue in this case
3 Having scheduled departure times on peddle runs was a benefit to
drivers because it enabled them to start work about the same time each
day instead of being on call for much or all of each workday.
4 The details of the side agreement on scheduled departure tunes were
testified to by Bill Tilton, the Respondent's area manager of labor rela-
tions, and Len Breeden, dispatch operations manager at the Memphis ter-
minal.
288 NLRB No. 144
CONSOLIDATED FREIGHTWAYS CORP. 1253
Neither the Union nor the Respondent ever re-
duced any agreements to writing pursuant to this
provision.
On December 28, 1985, Charging Party Paul
Hammontree filed a grievance (grievance 180) in
which he alleged that on December 11 the Re-
spondent had violated the bargaining agreement by
giving a longer (and hence more lucrative) peddle
run to a less senior driver, even though he and the
other driver had appeared at the dispatch window
at the same time for their second runs of the day.
In January and February 1986, Breeden informed
both Hammontree and Carrington that if Hammon-
tree took the grievance to the Multi-State Commit-
tee, Breeden would eliminate the departure times
on peddle runs. 5 13reeden's ostensible reason for
warning that departure times would be removed
was that the Respondent had granted them in
return for the Union's promise not to file griev-
ances over choice of destinations; if the Union
processed Hammontree's grievance—thus violating
the working agreement—the Respondent would be
free to withdraw the departure times.°
On February 25, 1986, Carrington presented
grievance 180 to the Multi-State Committee.
During the proceedings, Breeden explained to the
committee the terms of the working agreement re-
garding scheduled departure times on peddle runs,
and indicated that on several previous occasions,
grievances over choice of runs on peddle routes
had been withdrawn by the Union. However, the
session concluded with the following colloquy:
Tilton: Let me address one thing. We have
an agreement, and if the agreement is violated
by this letter that you sent out [apparently re-
ferring to Carrington's letter of February 26,
1985], well, that null and voids all agreements,
is that what you are saying?
Carrington: We don't have any agreements
with [Respondent]. We work pretty well with
the contract.
Tilton: You have no agreement that we will
have departure times on . . . .
Carrington: Not me, I never made an agree-
ment, did I Len?
Breeden: You wasn't there when they. . . .
Tilton: O.K. I just wanted it on the record
where we could change it. [Emphasis added.]
5 This statement is not alleged as a separate violation.
6 Under the collective-bargaining agreement, only the Union can take
a grievance to the Multi State Committee. It is not clear whether an indi-
vidual employee can force the Union not to pursue a grievance before
the Multi-State Committee; in any event, there is no evidence that Ham-
montree attempted to prevent the Union from prosecuting grievance 180.
While the committee was meeting in executive
session, Tilton told Carrington and Hammontree
that he could do away with departure times on
peddle runs and "be through with this part of it."
He also stated that the scheduled departure times
were "gone." Breeden added that the Respondent
was going to have Hammontree sitting by the
phone 24 hours a day after the starting times had
been removed.7
Grievance 180 was deadlocked at the Multi-State
Committee and, accordingly, was taken before the
Southern Area Grievance Committee. About June
7, 1986, the Area Committee sustained Hammon-
tree's claims.
About July 1, 1986, Breeden called Hammontree
into Breeden's office and said, "Well, you won
[grievance 180], you won it but you're going to
regret it. . . . I'm going to pull the starting times
off the runs and you will sit by the telephone."
Breeden also added, "You filed that grievance and
we had an agreement and the agreement is can-
celled so we're pulling the starting times."
On July 15, 1986, all peddle runs were posted for
bidding, but for the first time in about 4 years, they
were posted without scheduled departure times.
The Respondent did not negotiate with the Union
before removing the departure times from the
peddle routes.°
Driver Jerry Osborn, a former peddle driver, did
not submit a bid for a peddle run in response to the
July 1986 posting. When Breeden asked him why
not, Osborn replied, "Well, because they took the
departure times off." Breeden replied that Osborn
"could thank [his] friend Mr. Hannnontree for
that."
On July 28, 1986, Hammontree and Osborne
filed another grievance (grievance 101), alleging
that the Respondent had violated the collective-
bargaining agreement by posting peddle runs for
bids without departure times.° The grievance relied
on article 6, section 1, of the agreement (dealing
with extracontractual standards of individual em-
ployers) and article 42, section 4 (concerned with
posting regular runs with scheduled departure
times, among other things). Neither of those arti-
cles addresses discrimination for engaging in union
activities. Grievance 101 did not allude either to ar-
ticle 21 of the agreement, which forbids discrimina-
7 Tilton's and Breeden's statements were not alleged as violations.
8 The Respondent's unilateral removal of schedule departure times is
not alleged to violate Sec. 8(a)(5) of the Act
9 In sec ILE, par 5, of her opinion, the judge mistakenly stated that
grievance 101 was filed July 15, 1986. We note also that a similar griev-
ance (grievance 103), filed by Osborn, was withdrawn with Osborn's con-
sent on August 14, 1986. The judge erroneously stated in sec. III,E, that
Osborn's grievance had no number, and that it was withdrawn on August
4.
1254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion against any employee because of union mem-
bership or activities, or to article 37, which prohib-
its the Respondent from engaging in any unlawful
discrimination, and which requires any alleged vio-
lation of the article to be submitted to the griev-
ance procedure. The grievance did not allege that
the departure times had been removed because of
Hammontree's previous filing of grievances.
Carrington took grievance 101 to the Multi-State
Committee on August 26, 1986. Carrington argued
to the committee that if the Respondent was going
to do away with departure times, it should have
done so on February 26, 1985, when it had been
formally advised by his letter that all agreements
were canceled, rather than posting the peddle runs
for bids with departure times four times in the in-
terim. Tilton explained to the committee the histo-
ry of the side agreement on departure times for
peddle runs. He also stated that that agreement had
remained in effect until the February 1986 meeting
on grievance 180, when the subject of Carrington's
letter canceling all side agreements had been
brought up. Tilton recounted Carrington's state-
ment that he had never made an agreement with
the Respondent on departure times, and Tilton's
reply, "Okay, I just want it on the record so we
can eliminate departure times on peddle runs."
Tilton also informed the committee that during the
hearing on grievance 180 he had told Hammontree
that peddle runs would not have departure times
the next time they were posted. The transcript of
the proceeding contains no reference to allegations
of discrimination against Hammontree. The judge
credited Carrington's testimony that Hammontree
had raised no allegation of discrimination with him,
and that he had presented no such allegation to the
committee.
The Multi-State Committee denied grievance 101
without explanation.
,The judge credited Hammontree's testimony that
one Sunday night in early December 1986, he was
called in to pull a loaded trailer to Blytheville, Ar-
kansas, about 68 miles north of Memphis. He
reached Blytheville about 1:30 a.m.; "bobtailed"
(i.e., drove his tractor without a trailer) to Jones-
boro, Arkansas, about 55 miles from Blytheville,
which he reached about 2:30-2:45 a.m.; and then
"bobtailed" back to Memphis, about 70 miles from
Jonesboro. Hammontree testified that neither of the
Arkansas terminals was open when he arrived, and
that they customarily open about 7 or 8 a.m.
The complaint, as amended, alleges that the Re-
spondent (1) violated Section 8(a)(3) of the Act by
discontinuing its practice of dispatching peddle
drivers at scheduled departure times, and by imple-
menting the practice of dispatching peddle drivers
from midnight to midnight, because of Hammon-
tree's grievance-filing activities; (2) violated Sec-
tion 8(a)(1) on July 1 when Breeden threatened
Hammontree with less desirable working condi-
tions because he had filed a grievance; and (3) vio-
lated Section 8(a)(3) by issuing undesirable dispatch
orders and assigning undesirable runs to Hammon-
tree because he had filed grievances. The Respond-
ent denies that it violated the Act. It also raises the
affirmative defense that the Board should defer to
the decision of the Multi-State Committee in griev-
ance 101. The Respondent further urges that, to
the extent the complaint alleges unlawful activities
not previously presented to the grievance commit-
tee, the Board should defer to the contractual
grievance-arbitration procedure. As to the latter
defense, the Respondent asserts its willingness to
arbitrate and to waive any timeliness requirements.
The judge considered and rejected both the Re-
spondent's deferral defenses. She found that defer-
ral to the award in grievance 101 was not appropri-
ate because the Multi-State Grievance Committee
was presented only with the issue of whether the
Respondent's elimination of scheduled departure
times from peddle runs violated the contractual
provisions concerning seniority and maintenance of
standards. The committee was not asked to deter-
mine whether that action violated the contractual
provisions prohibiting discrimination, nor was it
presented with any information relevant to the
issue of whether the Respondent removed depar-
ture times because of Hammontree's filing of griev-
ances.
, The judge also rejected the Respondent's conten-
tion that the case should be deferred to the con-
tractual grievance machinery. In so doing, she
relied on language (set forth infra) in United Tech-
nologies Corp., 268 NLRB 557, 560, fn. 17 (1984),
which she construed as indicating that an individ-
ual, as opposed to a labor organization, should not
be required to resort to the contractual grievance
machinery for possible resolution of issues raised in
an unfair labor practice charge.1°
We agree with the judge that the Board should
not defer in this case to the decision of the Multi-
State Grievance Committee in grievance 101, The
Board does not defer to such an award unless the
arbitrator or grievance committee has adequately
Having rejected the Respondent's deferral defenses, the judge went
on to consider the merits of the complaint. She found that the Respond-
ent violated Sec. 8(a)(3) by removing the departure times from peddle
runs, and by giving Hammontree an unfavorable assignment because
Hammontree had filed grievances. She also found that the Respondent
violated Sec. 8(a)(1) when Breeden threatened Hammontree that the de-
parture times would be removed because he had filed a grievance In
view of our disposition of the case, we do not reach the merits of the
complaint.
CONSOLIDATED FREIGHTWAYS CORP. 1255
considered the unfair labor practice issue—that is,
unless the contractual issue is factually parallel to
the unfair labor practice issue, and the arbitrator or
grievance committee was presented generally with
the facts relevant to resolving the unfair labor
practice. Olin Corp., 268 NLRB 573, 574 (1984).
Those conditions have not been met in this case. In
his complaint in grievance 101, Hammontree never
alleged that the Respondent had removed depar-
ture times in retaliation for his filing of grievances.
Indeed, he never mentioned articles 21 and 37 (the
nondiscrimination provisions) of the collective-bar-
gaining agreement; instead, he based his claim on
other articles of the agreement, which do not ad-
dress the subject of discrimination. Nor did Car-
rington argue to the committee that the Respond-
ent had retaliated against Hammontree in violation
of the contract. Moreover, although Tilton alluded
at the grievance hearing to grievance 180 and to
the working agreement regarding scheduled depar-
ture times on peddle runs, he also implied that the
working agreement had been canceled because of
Carrington's February 26, 1985 letter and because
of Carrington's disavowal of any side agreements,
not because Hammontree filed grievance 180. We
find, therefore, that the issue of discrimination or
retaliation against Hammontree never was present-
ed to the Multi-State Committee, and consequently
we adopt the judge's finding that deferral to the
award in grievance 101 would be inappropriate.11
We disagree, however, with the judge's finding
that the case should not be deferred to the contrac-
tual grievance-arbitration procedure. The com-
plaint alleges that the Respondent threatened and
retaliated against Hammontree, and eliminated
scheduled departure times for all peddle drivers,
because of Hammontree's grievance-filing activi-
ties. Such alleged discrimination in retaliation for
an employee's engaging in union activities is clear-
ly prohibited by the contract, which establishes a
broad grievance-arbitration mechanism for the set-
tlement of just such disputes. The Respondent has
expressed a willingness to submit any such claims
to the grievance procedure, to waive any timeliness
requirements, and to be bound by the grievance
committee's decision. Consequently, contrary to
the judge, we find this case to be eminently suita-
ble for deferral. United Technologies Corp., 268
NLRB 557 (1984).12
" See, e.g., Hendrickson Bros., 272 NLRB 438, 439-440 (1985), enfd.
mem. 762 F 2d 990 (2r1 Cir. 1985).
12 Even though the unfair labor practices alleged here involve the Re-
spondent's actions in response, it is claimed, to the filing of a grievance,
the alleged misconduct does not indicate to us that recourse to the con-
tractual grievance machinery would be futile. Indeed, Hammontree filed
a grievance over one of the acts alleged to be unlawful. Thus, the record
demonstrates that the parties fully accept and freely resort to the griev-
As we have noted, the judge based her decision
not to defer to the grievance machinery largely on
footnote 17 in United Technologies, supra. That
footnote states:
Contrary to our dissenting colleague's asser-
tion, the pre-arbitral deferral policy articulated
herein does not constitute a waiver of employ-
ees' statutory rights nor does it "force individ-
ual employees to litigate statutory rights in a
contractual forum." Nothing in this decision
diminishes the right of employees to seek stat-
utory relief for alleged unfair labor practices.
We simply hold that where contractual griev-
ance-arbitration procedures have been invoked
voluntarily we shall stay the exercise of the
Board's processes in order to permit the par-
ties to give full effect to those procedures.
Id. at 560 fn. 17. The judge evidently interpreted
that footnote to mean that an individual, as opposed
to a labor organization, cannot be compelled to
consign an unfair labor practice issue to the con-
tractual grievance-arbitration machinery, but in-
stead is always entitled to have his complaint de-
cided by the Board, even if the case is otherwise
suitable for deferral. We disagree with the judge's
reading of the quoted passage. Her interpretation, if
accepted, would mean that deferral is inappropriate
whenever the charging party is an individual and
not a labor organization, and therefore that a union
could circumvent the contractual grievance proce-
dure by the simple expedient of having the individ-
ual employee, instead of the union, file the charge
with the Board. Such an interpretation obviously
would seriously impair, if not defeat altogether, the
well-established policy favoring private dispute res-
olution mechanisms."
The passage relied on by the judge must be read
in the context of the rest of the decision in United
Technologies. The Board explained the policy of
prearbitral deferral thus:
Where an employer and a union have volun-
tarily elected to create dispute resolution ma-
chinery culminating in final and binding arbi-
tration, it is contrary to the basic principles of
ance process for settling disputes. See United Technologies Corp., id. supra
at 560 fn. 21.
13 See United Technologies Corp., supra at 558-560; Olin Corp., 268
NLRB at 574. The Board has disavowed reasoning similar to that of the
judge. L. E. Myers Co., 270 NLRB 1010 fn. 2 (1984). We note also that
in none of the other cases relied on by the judge to support her interpre-
tation of United Technologies (Hendrickson Bros), supra, Ryder/P.LE Na-
tionwide, 278 NLRB 713 (1986), modified on other grounds 810 F.2d 502
(5th Cir. 1987); Aces Mechanical Corp., 282 NLRB 928 (1987), enf. denied
837 F.2d 570 (2d Cir. 1988)), did the Board base its refusal to defer on
the fact that an individual, rather than a labor organization, was the
charging party.
1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Act for the Board to jump into the fray
prior to an honest attempt by the parties to re-
solve their disputes through that machinery. . . .
In our view, the statutory purpose of encour-
aging the practice and procedure of collective
bargaining is ill-served by permitting the par-
ties to ignore their agreement and to petition
this Board in the first instance for remedial
relief.
[D]eferral is not akin to abdication. It is
merely the prudent exercise of restraint, a
postponement of the use of the Board's proc-
esses to give the parties' own dispute resolu-
tion machinery a chance to succeed. The
Board's processes may always be invoked if
the arbitral result is inconsistent with the
standards of Spielberg [Mfg. Co., 112 NLRB
1080 (1955)].
Supra at 559-560 (emphasis added). Thus, the clear
import of United Technologies is that the Board's
processes are available in the first instance to indi-
vidual employees if private dispute-resolution
mechanisms do not exist or, for one reason or an-
other, are inadequate. Where such mechanisms
exist and the other conditions for deferral are met,
however the Board will stay its hand and afford
the private grievance-arbitration machinery the first
opportunity to decide the issue, regardless of the
identity of the charging party.
Accordingly, we believe that deferral of this case
to the contractual grievance-arbitration mechanism
would best effectuate the purposes and policies of
the Act, and we shall so order.14
ORDER
The complaint is dismissed, provided that:
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration on a proper
showing that either (a) the dispute has not, with
reasonable promptness after the issuance of this
Decision and Order, either been resolved by amica-
ble settlement in the grievance procedure or sub-
mitted promptly to arbitratiel, or (b) the grievance
or arbitration procedures have not been fair and
regular or have reached a result that is repugnant
to the Act.
14 The Respondent must, of course, waive any timeliness provisions of
the grievance-arbitration clauses of the collective-bargaining agreement
so that Hannnontree's grievance may be processed in accordance with
the following Order.
David P. Jaqua, Esq., of Memphis, Tennessee, for the Re-
spondent. -
Mr. Paul Hammontree, of Millington, Tennessee, pro se.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Memphis, Tennessee, on 9
and 10 February 1987, pursuant to a charge filed on 12
September 1986 by employee Paul Hammontree, and a
complaint issued on 20 October 1986, amended on 19
December 1986, and amended again on 28 April 1987.1
The complaint as amended alleges that about June 1986,
Respondent Consolidated Freightways Corporation of
Delaware violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by threatening an employee with
less desirable working conditions because he tiled a
grievance pursuant to an extant collective-bargaining
agreement. The complaint further alleges that Respond-
ent violated Section 8(a)(3) and (1) of the Act about 15
July 1986, by discont inuing its practice of dispatching its
peddle run drivers at scheduled departure times, and by
implementing the practice of dispatching such drivers
from midnight to midnight, all because the Charging
Party, Paul Hammontree, filed grievances in December
1985 and February 1986. As to this 8(a)(3) allegation, Re-
spondent seeks dismissal on the ground that it was alleg-
edly the subject of a 28 July 1986 grievance, which was
denied by a contractually established bipartite grievance
committee; in the alternative, Respondent contends that
the matter should be deferred to the contractually estab-
lished grievance procedure. Finally, the complaint as
Pmended alleges that commencing about 15 July 1986,
Respondent has violated Section 8(a)(3) and (1) by issu-
ing undesirable dispatch orders and assigning undesirable
runs to Hammontree. As to this allegation, Respondent
contends that it should be deferred to the contractual
grievance procedure. In addition, Respondent contests
all the unfair labor practice allegations on their merits.
On the entire record, including the demeanor of the
witnesses (see infra sec. II,G,1,a), and after due consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place
of business in Memphis, Tennessee, Respondent is en-
gaged in the interstate transportation of freight. During
the 12-month period ending 30 September 1986, a period
that includes the commencement of the alleged unfair
labor practices, Respondent derived gross revenues in
excess of $50,000 for the transportation of freight and
commodities from Tennessee to points directly outside
Tennessee. I find that, as Respondent admits, Respondent
This posthearing 1987 amendment was effected by an unopposed
motion m the posthearing brief of counsel for the General Counsel,
which motion I granted on 28 April 1987.
Jack L. Berger, Esq., for the General Counsel.
CONSOLIDATED FREIGHTWAYS CORP. 1257
is engaged in commerce within the meaning of the Act,
and that assertion of jurisdiction over its operations will
effectuate the policies of the Act.
Highway and Local Motor Freight Employees Local
Union No. 667, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers (the Union) is a labor organization within the
meaning of the Act.
II. THE ALLEGED UNFAIR, LABOR PRACTICES
A. Background
1. Minimum driving time dispute
Since at least 1979, Respondent and the Union have
been bound by a series of collective-bargaining agree-
ments designated as the National Master Freight Agree-
ment and the Southern Conference Area Over-the-Road
Motor Freight Supplemental Agreement. The bargaining
unit includes both peddle drivers and drivers on regular
runs (see infra sec. II,A,2). At all relevant times, these
agreements have permitted grievances not settled at the
local level to be submitted to the Southern Multi-State
Grievance Committee (the Multi-State Committee),
which is composed of an equal number of employer and
union representatives. Under the bargaining agreements,
the parties are bound by any decision in which a majori-
ty of the Multi-State Committee have joined.
Most regular runs are assigned a nominal "minimum
driving time" (also called a "minimum running time").
At least ordinarily, a driver on a regular run is not con-
tractually entitled to call in for a new dispatch until the
elapse, after the end of his prior run, of the number of
hours in the relevant minimum driving time for his run,
plus 8 hours' rest time. Where the driver has completed
a regular run in less than the minimum driving time, the
period between the completion of his subsequent re-
quired 8 hours' rest time and the time he is contractually
entitled to call in for a new dispatch is called "hot time."
Hot tune is supposed to be "marked off" by the driver
before calling in for a new dispatch, and by Respondent
before dispatching him. A driver who calls in during his
hot time, and thereby receives a dispatch which should
have been received by someone else, is described as
"jumping the board," "jumping the call period," or
"jumping calls," thereby effecting a "runaround."
At least under some circumstances, if a driver is a con-
siderable distance from his home terminal (in the instant
case, Memphis) at the elapse of his minimum driving
time, Respondent has the contractual right to require
him to remain at that location until he is contractually
entitled to receive a new dispatch. Such a requirement
would as a practical matter disable a driver from jump-
ing the board even if he had completed his run in less
than the minimum driving time." However, this require-
ment also lengthens the period during which the driver
must remain away from home, and otherwise limits his
choice in how to use his leisure time. Respondent's area
manager of labor relations, Bill Tilton, testified that on
an undisclosed date before Jimmy Carrington became
union president in 1984, Tilton agreed with unidentified
union representatives that "we were going to allow the
people to come in and sign up for hot time. But we were
paying no run arounds and we were paying absolutely
no monetary claims" even if the driver had a claim
under the literal language of the contract. However,
when Respondent's counsel asked Len Breeden (oper-
ations manager at the Memphis terminal since 1981)
whether he was involved (prior to Carrington's adminis-
tration) in "some local agreement with [the Union] con-
cerning the enforcement of minimum running time," he
replied no.
In any event, during an undisclosed period before Car-
rington became union president in January 1984, and for
several months thereafter, Respondent permitted drivers
to return to Memphis during their hot time, and drivers
requested and received assignments during their hot
time. Breeden testified that on an undisclosed date before
1984, a grievance was withdrawn "due to the fact that
the discussion as, we don't want to open up a keg of
worms, because we know this minimum running sched-
ule has always been a hot item. . . as far as enforcing—
making drivers toe the line on the minimum run sched-
ule.
On an undisclosed date between 8 January 1984 and 10
May 1984, a runaround grievance was filed on behalf of
extra-board driver Sandridge, who had failed to receive
a particular dispatch because a senior driver had previ-
ously received that dispatch during his hot time. Re-
spondent paid Sandridge the amount claimed. Breeden
testified that this grievance "opened up another keg of
worms, because we—it was understood that if there is
any monetary claim involved . . . I would enforce the
minimum run schedule, to the minute"; he testified that
this agreement was with the Union. Breeden began re-
quiring drivers to remain at their out-of-town layover
point "to the minute" until their minimum driving time
plus 8 hours had expired. In addition, Respondent began
to require them to remain at such a layover point for ad-
ditional hours in order to make themselves available for
call. Respondent issued a number of warning letters to
drivers who left their point of layover during their hot
time or on-call time. On several occasions, Carrington
and the union stewards approached Tilton and Breeden
in an attempt to resolve the employees' complaints about
this practice. Eventually, on 10 May 1984, Carrington
and Breeden entered into a written agreement that for
the next 30 days, (1) drivers would be permitted to
return to Memphis during their hot time; (2) drivers
were to add their hot time to their call time, so that they
would not be given an earlier call period than they were
contractually entitled to; and (3) "there will be no mone-
tary claims or warning letters concerning this matter."
This arrangement was observed until, about January
1986, a runaround grievance was filed by an extra-board
driver Corice with respect to a dispatch that Respondent
had mistakenly given to another driver who had failed to
add his hot time to his call time. At this point, Breeden
told Carrington that if the Union submitted this griev-
ance to the grievance committee, Breeden was going to
have to require drivers to remain at out-of-town destina-
tions until the expiration of their minimum driving time
plus 8 hours. Nonetheless, the Union did submit the
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Corice grievance to the grievance committee, which sus-
tained the grievance. Respondent paid C,orice the
amount claimed. In consequence of Corice's grievance,
on 25 February 1986 Breeden wrote the following
memorandum to all the drivers, with copies to (inter alia)
Tilton and the Union:
A recent log audit indicates . . that many,
many minimum running schedules are being violat-
ed.
Due to a recent grievance by [the Union], it has
become necessary to police and enforce the mini-
mum run schedules. . . .
Effective immediately, the minimum running
schedule will be enforced to the minute. . . .
Anyone violating the established minimum run-
ning schedules. . . will be disciplined accordingly.
The Union's protest of this action was rejected by the
grievance committee. For an undisclosed period, Re-
spondent strictly enforced this policy, and issued warn-
ing letters to drivers who violated the minimum run
schedule.
In consequence of negotiations requested by the
Union, in early 1986 the parties reached an written
agreement, which is not in the record, to resume adher-
ing to the agreement reduced to writing on 10 May 1984.
Tilton and Breeden testified that if any of the drivers
filed any monetary claims in connection with this hot
time matter, Respondent would start enforcing the mini-
mum run schedule; Tilton testified that Respondent
would "absolutely not" negotiate with the Union about
whether to return to this practice.
As far as the record shows, no unfair labor practice
charges were ever filed in connection with the dispute
regarding minimum running time.
2. Agreement regarding scheduled departure time
for peddle runs
At all relevant times, the bargaining agreements have
contained provisions for regular runs and for peddle
runs. Drivers on regular runs drive from their home ter-
minal (in the instant case, Memphis) to terminals in rela-
tively distant cities. The 1985-1988 bargaining agreement
defines peddle runs as those "that originate and terminate
at the point of origin of that run in the same tour of
duty, and/or within a radius of one hundred (100) miles
of the center point of that city."
At all relevant times, Respondent and the Union have
interpreted the bargaining agreement as requiring that
both regular runs and peddle runs be periodically bulle-
tined for bidding, and that they be awarded on the basis
of seniority. Also, at all relevant times, Respondent and
the Union have read the contract as requiring the bulle-
tining for regular runs to include (inter alia) the destina-
tions and the "approximate time of departure"; this last
phrase—usually referred to in the record as "scheduled
departure times," "departure times," or "starting
times"—means the earliest hour at which the driver can
be required to report for duty, and has other implications
discussed infra (sec. II,F). However, at no time has the
contract in terms required the bulletining for peddle runs
to include approximate departure times, or in terms re-
quired that as to peddle runs, drivers be given choice of
destinations on the basis of seniority. As discussed infra
(sec. II,C), the Union read the contract, at least in 1986,
as requiring approximate departure times on peddle runs,
and as requiring as to peddle runs a choice of destination
(sometimes referred to herein and in the record as
"choice of runs" or "choice of loads") under at least
some circumstances. Tilton testified to the opinion that,
at all relevant times, the contract was susceptible to the
interpretation that the senior peddle run driver was enti-
tled to a choice of runs if, after the drivers had complet-
ed their first dispatch during their tour of duty, two of
them simultaneously came to the dispatch window He
further testified to the opinion that the contract was not
susceptible to the interpretation that peddle run drivers
were otherwise entitled to a choice of runs, or were enti-
tled to approximate departure times.
No peddle runs were run out of the Memphis terminal
until January 1982. Tilton testified that shortly after Re-
spondent initiated peddle runs out of Memphis, and
while Rainey was union president, Tilton reached an oral
agreement with then union business agent Billy Moffit
and then job steward Gerald Allen that "we. . go to a
time departure on our peddle run bids in lieu of no—ab-
solutely no destination choices." Tilton further testified
that under this agreement, if a peddle driver were to
present a claim of choice of runs or destinations at the
window or otherwise, the Union was to withdraw the
case and discharge the responsibility of informing the
driver that the Union and Respondent had a parking
agreement on peddle runs. Before Carrington became
union president in early 1984, references by Respondent
to this 1982 agreement had caused the Union to with-
draw an undisclosed number of grievances claiming
choice of destinations on peddle runs. Breeden testified
that over a period of 3 or 4 years, every time the ques-
tion of choice of runs came up, Respondent told the
Union, "We've got an agreement, if you file a grievance
well eliminate the departure times."
At the instance of unit employee Paul Hammontree,
Union President Carrington advised Tilton, by letter
dated 26 February 1985:
This is to inform you that if [the Union] and [Re-
spondent] have any agreements that they become
null and void at the end of our existing contract,
March 31, 1985.
. . _ we are willing to meet and discuss any dis-
patch procedures, work rules or etc. that we have
had in the past at your convenience.
Respondent did not reply to this letter. Carrington testi-
fied that he sent it because of turnover among union offi-
cers and stewards who might have been parties to such
agreements.
Article 6 of a new collective-bargaining agreement,
which went into effect on 1 April 1985, contained the
following provisions:
CONSOLIDATED FREIGHTWAYS CORP. 1259
Section 1.
Maintenance of Standards
The Employer agrees, subject to the following
provisions, that all conditions of employment in his
individual operation relating to. . . hours of work
. . . and general working conditions shall be main-
tained at not less than the highest standards in effect
at the time of the signing of this Agreement. . . .
Local Standards
(a) The Local Unions and the Employers shall,
within one hundred eighty (180) days following
ratification of this Agreement, identify and reduce
to writing, and submit to the appropriate Confer-
ence Joint Area Committee, those local standards,
and conditions practiced under this Article. Those
local standards and conditions previously practiced
hereunder which are not so submitted shall be
deemed to have expired.
Neither the union nor Respondent ever put anything in
writing pursuant to this provision.
B. Significance of Bid Scheduled Departure Times
As previously noted, Respondent and the Union have
always regarded the bargaining agreement as requiring
that bulletins for regular runs include scheduled depar-
ture times. Between about mid-1982 and July 1986, Re-
spondent followed the practice of specifying a scheduled
departure time on the bulletins for peddle runs as well.
When a driver had successfully bid on a run with a
scheduled departure time, he could not be required to
report to work before that time, and had other rights
summarized infra (sec. H,F). A driver (such as an "extra
board driver") who did not have a run with a scheduled
departure time could be required to report to work, on 2
hours' notice, at any hour during the 5 calendar days
that constituted his workweek, provided that he was
"rested"—that is, had received the 8-hour interval, since
completing his last tour of duty, required by the bargain-
ing agreement and by the regulations of the United
States Department of Transportation (see infra, sec.
II,F).
C. Hammontree's December 1985 Grievance 180
Paul Hammontree has been working for Respondent
since 1981, at Respondent's Memphis terminal. During
the first 6 months of 1984, he was a job steward for the
road drivers. He has been a peddle driver since 1985.
Ordinarily, during each peddle driver's tour of duty he
receives two dispatches. Peddle drivers are paid by the
mile, with a minimum 8-hour guarantee unless their run
is timely canceled. In October 1985 and again in Decem-
ber 1985, Hammontree complained to Dispatch Oper-
ations Manager Breeden that the dispatcher was giving
the longer runs to drivers junior to Hammontree. Driver
Supervisor Charles Jennings, who is the coordinator for
the peddle runs, testified without objection that before
1986, he made an analysis of Respondent's records over a
1 month period, determined that Hammontree had
earned as much as or more than the other peddle drivers
for that period, and so advised Hammontree.
After concluding that the complained-of conduct was
continuing, on 28 December 1985 Hammontree filed a
grievance that is referred to in the record as grievance
180. Grievance 180 alleged, among other things, that on
11 December 1985, Respondent had violated the bargain-
ing agreement when, on an occasion when both Ham-
montree and a junior peddle driver had appeared at the
window for their second dispatch during their tour of
duty, the junior driver had received a better (i.e., a
longer) run. Other claims in this grievance are discussed
infra.
About January 1986, Breeden called Hammontree into
the office and told him that Breeden, former Union Busi-
ness Agent Moffit, and former steward Allen had made a
"verbal agreement on the peddle runs having a starting
time." Breeden went on to say that if Hammontree let
grievance 180 go to the Multi-State Grievance Commit-
tee, Breeden would "pull the starting times off the runs,
and have [Hammontree] setting by the telephone twenty-
four hours a day, [Hammontree] would be at [Breeden's]
beck and command." Article 7 of the bargaining agree-
ment permits only the Union or Respondent to invoke
the grievance procedure. It is unclear from the agree-
ment whether Hammontree had the power, without the
Union's consent, to prevent his grievance from going to
the Multi-State Committee. The record indicates, howev-
er, that at least ordinarily, the Union will honor a griev-
ant's request to withdraw his grievance. So far as the
record shows, Hammontree made no such withdrawal
request.
A few days later, Harnmontree telephoned Breeden to
ask about an error in Hammontree's paycheck. In the ex-
pectation that Breeden would repeat his earlier remarks,
Hammontree tape-recorded this telephone conversation.
The tape recording, which was received into evidence,
shows that Breeden asked what Hammontree wanted to
obtain by the grievance. Hammontree said, "When we
come in to go to work. . . why can't we have a choice
in what," at which point Breeden interrupted him. Bree-
den said that the peddle drivers had no choice because of
an agreement reached when peddle runs were first insti-
tuted at the Memphis terminal, but added that Breeden
would discipline the dispatcher if he treated Hammon-
tree unfairly. Hanunontree said that when he and other
drivers junior to him had all clocked in at the same time
on returning from their respective trips, the dispatcher
had been giving the others long trips and Hammontree
had been receiving only his 8-hour guarantee. Breeden
said, "When this goes to grievance the first thing I'm
going to do is pull the departure times cause that was a
verbal agreement. Departure time does not, you know, is
not compulsory on a peddle run." Hammontree said that
he, peddle driver Jerry Osborn, and Carrington had al-
ready talked on two occasions to Breeden about giving
the senior peddle driver a choice of runs when two
peddle drivers walked in the door at the same time.
Breeden said that he had been talked to "ever since we
started," and that he was not going to change his mind
about it. He further said that "this was established a long
1260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time ago on this give and take situation." Hammontree
again complained about not receiving a choice of runs
when he and a junior driver came to the dispatch
window at the same time. Breeden said that Hammontree
had chosen to bid a peddle run and "You knew what
was going to happen . . . it had been established and
agreed to whenever . . . we first got in this peddle
runs." Hammontree alleged that dispatcher Charles Jen-
nings had persisted in giving Hammontree inferior runs
until he had filed grievance 180, and that then he "start-
ed to get the runs." Breeden said, "I wouldn't have done
that, I would have said just give him the eight hour min-
imum and let him go home . . . . I'm not objecting to
this grievance, Paul, I'm objecting to what's going to
happen . . . because it is one thing the Company does,
we can run the freight when we get ready. . . . When I
pull those, and I'm going to do it, I'm going to pull those
departure times the minute this thing goes to grievance
and then you'll have to sit by the phone all day. You
don't want to do that, I don't think" Hammontree said
that he did not want to sit by the phone, but at least he
would not be running strictly 8-hour guarantees. Ham-
montree further expressed the opinion that in assigning
runs, dispatcher Jennings was favoring drivers junior to
Hammontree. Breeden said that he would not put up
with a "personality thing" or "any of the [dispatchers]
doing it intentionally."
On 10 February 1986 Hammontree filed two more
grievances, referred to in the record as grievance 120
and grievance 121. Grievance 120 alleged that on a
second dispatch on 2 January 1986, he received a worse
run than a junior peddle driver who, following their first
run, clocked in 9 minutes after Hammontree. Grievance
121 made the same allegation as to 3 January 1986, when
the two drivers allegedly clocked in at the same time. As
to these the grievances, on 10 February 1986 Carrington
submitted reports to the Multi-State Grievance Commit-
tee alleging as to each grievance that Respondent "did
not offer all known runs." In both cases, he requested a
money payment to Hammontree.
Thereafter, Breeden forwarded to Tilton copies of
grievance 180 as initially drafted and filed by Hammon-
tree, Carrington's report about it to the Multi-State
Grievance Committee ("Company ran around Hammon-
tree, didn't offer all known runs at time of dispatch"),
and some material collected or prepared by Respondent's
staff in connection with the grievance. Attached to this
material was a memorandum from Breeden to Tilton,
dated 13 February 1986, which stated, in its entirety,
"Bill, if this goes to grievance, I will simply eliminate the
bid departures. You know the story on this. . . ." When
testimonially authenticating this memorandum, Tilton
added, "And I knew the story, we had an agreement
with the local union."
On 17 February 1986 Carrington, Breeden, Sand chief
job steward James Jones conferred about grievance 180.
Carrington said that all Hammontree wanted was to
permit peddle drivers to exercise seniority if Respondent
was going to dispatch the bid peddle men at the same
time. Breeden expressed the opinion that Hammontree
wanted to be "given his whole night's work on the front
end," and said that Respondent could not do that. Car-
rington agreed that Respondent could not do that, but
said that Hammontree was not asking for that. As to the
part of the grievance that was under discussion at this
point, Hammontree's grievance asserted: "They definite-
ly know at the time of my dispatch, which is at 5:30
p.m., all runs available for the entire night because all
[satellite] terminals are closed." 2 Breeden accurately ad-
vised Carrington and Jones that this was not true.
After asking to be reimbursed for loss of pay for the
11 December incident, Hammontree's grievance went on
to state:
I am also requesting that this committee make [Re-
spondent] abide by Article 6 [the "Maintenance of
Standards" clauses quoted supra sec. ILA,2] and
Article 42, Section 1 "Seniority shall prevail."
Under this article I should be offered all runs avail-
able at the time I am dispatched, rather than be at
the mercy of the dispatcher to decide my earning
power. I am asking that this committee meet their
obligation to the membership and give us back our
seniority. I want this grievance ruled on or settled,
in my behalf, in [its] entirety and not in part.
During this discussion, Carrington and Breeden never
reached an agreement on the meaning of this part of the
grievance. Breeden told Carrington and Jones that there
had been an agreement that scheduled departure times
would be given in lieu of destinations or choice of runs,
and that if Hammontree's grievance was presented to the
Multi-State Grievance committee, Breeden was going to
remove scheduled departure times. Carrington said that
he was obligated to take the grievance to the committee.
Breeden replied, "I'm sorry. . . You know the results of
that. We're going to eliminate the departure time." Car-
rington testified that he was not obligated to take every
grievance to the Multi-State Committee, and that on oc-
casion he had withdrawn unmeritorious grievances; but
that he believed Hammontree's grievance 180 to be meri-
torious and had not believed Respondent would remove
departure times—"Why fix something that is not broke?"
On 25 February 1986 grievance 180 was presented to
the Multi-State Grievance Committee. Carrington took
the position that when the drivers were at the dispatch
window "at the same identical time clock punch," the
senior driver should have his choice of loads. He read
into the record, however, the entire grievance filed by
Hammontree. Further, Hammontree stated that if "serv-
ice" (i.e., a customer's request for prompt delivery) was
not involved, the senior driver should have on every dis-
patch his choice of the runs that were available -: During
the grievance proceeding, Breeden stated that in 1982 he
had agreed with the Union that if Respondent gave each
peddle driver a scheduled departure time, these drivers
would not have a choice of runs. Further, Breeden
stated, "And this was agreed upon [in 19821 and all
during this time for the past two or three years we have
had this very same thing come up. Time and time again,
and withdrawn by the Union."
2 These were the terminals served by the Memphis peddle drivers.
CONSOLIDATED FREIG/ITWAYS CORP. 1261
The 25 February 1986 grievance session concluded
with the following colloquy:
TILTON: Let me address one thing. We have an
agreement, and if the agreement is violated, by this
letter that you sent out, 3 well, that null and voids
all agreements, is that what you are saying?
CARRINGTON: Now, I did that during the con-
tract negotiations. . . .
Tirrox: O.K. So the agreements are. . . .
CARRINGTON: We don't have any agreements
with [Respondent]. We work pretty well with the
contract.
TILTON: You have no agreement that we will
have departure times on. . . .
CARRINGTON: Not me, never made an agree-
ment, did I Len [Breeden]?
BREEDEN: You wasn't there when they. . . .
TILTON: O.K., I just wanted it on the record
where we could change it.
While the committee was considering grievance 180 in
executive session, Carrington, union representative
Owen, Hammontree, Breeden, and Tilton went out in
the hall to await a decision. Tilton, who was somewhat
upset about the grievance, said that he could do away
with the departure times on the peddle runs and "be
through with this part of it." Carrington said that Re-
spondent had not lost the grievance yet. Tilton said that
the scheduled departure times were "gone." Carrington
said that Respondent could not do this. Breeden said
either that he agreed that Respondent was going to have
Hammontree sitting by the telephone 24 hours a day
(Hammontree's version) or "There will be times that you
will have to wait by the phone, or sit by the phone wait-
ing on a call to go to work" (Breeden's version). (See
infra sec. II,G,1,a.)
Later that same day (25 February 1986), the parties
were advised that grievance 180 had been deadlocked—
that is, the six members of the Multi-State Committee
were evenly divided regarding the merits of the griev-
ance. Under the bargaining agreement, this meant that
the grievance would automatically proceed to the South-
ern Area Grievance Committee (the Area Committee).
About 2 and 9 May 1986, respectively, while griev-
ance 180 was pending before the Area Committee, Bree-
den bulletined and awarded peddle runs with scheduled
departure times. Breeden was not asked why Respondent
was still including scheduled departure times on peddle
runs. Tilton, who received a courtesy copy of the bulle-
tin and of the awards, testified that such inclusion was an
"oversight." 4
About 7 June 1986, on the basis of the transcript taken
before the Multi-State Grievance Committee, the South-
ern Area Grievance Committee sustained Hammontree's
claim in grievance 180. Because the parties had agreed
3 Inferentially, Tilton was referring to Carrington's letter dated 26
February 1985 (see supra sec. II,A,2).
IÌ€ My finding that Tilton received a copy of the bulletin is based on the
fact that he received a copy of all the bulletms that are in the record, on
various dates between January 1982 and November 1985. The record
does not mclude the bulletin that led to the bid awards issued on 9 May
1986.
that the decision in this case would control the decisions
in grievances 120 and 121, Hammontree's 10 February
grievances regarding choice of run, the Southern Area
Grievance Committee's decision meant that Hammon-
tree's claims in these two cases were also sustained.
Hammontree thereafter received the amounts claimed,
totaling about $62.
Carrington testified that when discussing the grievance
on 17 February, he told Breeden that what Hammon tree
wanted was to know all known loads at the time of dis-
patch, and for the senior driver to have his choice of
destinations if Respondent was going to dispatch two bid
peddle men at the same time, whether the dispatch was
the first or a later one on their tour of duty. 3 Breeden
testified that although the incident on which grievance
180 was based was a second dispatch, the "complete
grievance" dealt with the first dispatch and that when
discussing the grievance, Carrington had told him that
the grievance related to choice of runs for the first de-
parture and never mentioned the second departure.6
Tilton testified that although Hammontree took the posi-
tion in his grievance and in his oral representations
before the Multi-State Committee that the senior peddle
driver was entitled at every dispatch to a choice of then-
available destinations, Carrington did not so contend; and
that in consequence of the Area Committee's decision,
the senior peddle driver was entitled to choice of desti-
nations on the second dispatch only, and when two
peddle drivers were at the window together. An uniden-
tified person's undated entry on Respondent's internal
records concerning this grievance states, in part,
"Sustained/Must offer at window/Pay difference in earn-
ings." Respondent's brief states (p. 23) that the Area
Committee "sustained the grievance in part, ruling that
peddle drivers returning to the dispatch window at the
same time must be offered runs according to seniority."
D. Alleged Independent Violation of Section 8(a)(I)
About 1 July 1986, Breeden called Hammontree into
Breeden's office and said, "Well, you won [grievance
180], you won it but you're going to regret it. . . . I 'm
going to pull the starting times off the runs and you will
sit by the telephone." Hanunontree asked why the
peddle drivers could not still have departure times. He
said, "We get the choice on the second runs . . . . It's
not anything any different from the way it was. You-all
still tell us what we're going to run on first." Breeden
said, "You filed that grievance and we had an agreement
and the agreement is cancelled so we're pulling the start-
ing times."
5 At least since March 1984, every peddle driver had had a different
scheduled departure time; such times were usually at half-hour intervals.
There is no evidence that peddle drivers had ever been simultaneously
sent out on their first dispatch. Moreover, Hammontree testified that he
always reported to work at his scheduled departure time
6 As to the matters mvolved in these two sentences, see infra, sec.
II,G, La.
1262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. Allegedly Unlawful Elimination of Departure
Times from Peddle Runs; Grievance Regarding this
Matter
The May 1986 award of peddle and other runs had
stated that such awards would run for about 6 months.
In July 1986, however, the parties implemented a
change, effected in the April 1985 bargaining agreement,
in the manner of figuring mileage. Accordingly, all runs
were again bulletined on 15 July 1986. For the first time
in about 4 years, the peddle runs were bulletined without
departure times. Tilton testified that he had no negotia-
tions at all with the Union before taking off scheduled
departure times; "I told the Union that if they proceeded
with this grievance. . . I was going to take the depar-
ture times off." As to the removal of departure times,
Carrington testified that he had tried to talk to Tilton
about it, that by that time the matter was before the
Multi-State Committee, "so I asked Mr. Tilton not to
take them away, and that's all the bargaining we did,"
and that Carrington agreed to let the Committee decide
whether Respondent was required to continue the past
practice of having departure times. Tilton testified that
he could not recall any prior occasions in Memphis
where Respondent had unilaterally changed something
that was contended to be a past practice. Moreover, he
initially testified to what he described as an opinion
"long-standing with me" that after observing for 90 days
after the effective date of the April 1985 bargaining
agreement any practice not initially required thereunder,
Respondent became contractually compelled to continue
observing that practice; the evidence shows that Re-
spondent had been bulletining and awarding peddle runs
with departure times for more than a year after the effec-
tive date of that contract.7
No bid for a peddle run pursuant to the July 1986 bul-
letin was submitted by driver Jerry Osborn, who had
been the senior peddle run driver since at least Novem-
ber 1985, because "they took the departure times off and
I didn't want to sit by the telephone and wait for the
calls." On 17 July, however, Osborn filed a grievance,
which does not bear a number, alleging that Respondent
had violated the bargaining agreement by bulletining
peddle runs without departure times. A few days later,
Breeden asked Osborn whether he was going to bid on a
peddle run this time. When he said no, Breeden asked
him why. He said, "Well, because they took the depar-
ture times off." Breeden said that Osborn "could thank
[his] friend Hammontree for that." Osborn said, "If you
have got a beef with Mr. Hammontree why don't you
take him out in he street and settle it like a man?" Bree-
den said that he ' had no "beef with" Hammontree.
Osborn asked why Breeden had taken the departure time
off the peddle runs. Breeden replied, "Because that's the
way I want to do it."
On 28 July 1986, Hammontree and Osborn jointly filed
a grievance referred to in the record as grievance 101.
7 After Tilton so testified on direct examination, Respondent's counsel
directed Tilton's attention to art 6 of the 1979-1982 and 1982-1985 bar-
gaining agreements. After examining these portions of the agreements, he
testified that his prior testimony was true as to the 1979-1982 contract
only.
This grievance alleged that Respondent had violated arti-
cles 6 and 42 of the bargaining agreement by bidding
peddle runs without departure times. Relevant provisions
of these articles are described supra, section II,A,2, and
C. Neither of them includes any provisions regarding dis-
crimination for union activity.
Breeden and Carrington both testified that as far as
they were aware, this was the first time since Carrington
became president that grievances had been filed on the
subject of departure times in lieu of choice of runs.8
After the filing of grievance 101, Carrington and Bree-
den discussed both the unnumbered Osborn grievance
and the Hammontree-Osborn grievance 101. Carrington
and Breeden agreed that the unnumbered Osborn griev-
ance would be withdrawn and that grievance 101 would
proceed directly to the Multi-State Grievance Commit-
tee. With Osborn's consent, his unnumbered grievance
was withdrawn on 4 August 1986.
Frank A. Bennett Jr. testified on direct examination
that on one occasion after becoming a peddle driver on
28 July 1986, he made a complaint to Breeden that on
Bennett's tour of duty, he had received much lower
mileage than extra board drivers. Still according to Ben-
nett on direct examination, Breeden replied that if Ham-
montree won his grievance "on this seniority bit or
choice of run, however it was worded," all the drivers
would get would be an 8-hour guarantee. On cross-exam-
ination, Bennett testified that the only grievance by
Hammontree that Bennett knew about was Hammon-
tree's choice-of-runs grievance; Bennett testified that he
did not think this had been filed in late 1985, but, as pre-
viously noted, it had been filed in December 1985 and
sustained in June 1986. Bennett went on to testify that he
was not aware of any other grievance on departure times
since that time. Hammontree's departure-time grievance
was filed on 15 July 1986 and (as discussed infra) was
lost by him in late August 1986. On direct examination,
Bennett testified that this conversation occurred "around
October, September [1986], somewhere around there."
On cross-examination he testified, "I don't know whether
it was September or earlier." Breeden was not asked
about this conversation. The complaint does not allege
that any such remarks by him violated the Act.
Grievance 101 was heard by the Multi-State Griev-
ance Committee on 26 August 1986. Carrington invited
Hammontree to attend the hearing, but he said that he
was busy and thought Carrington was able to handle the
grievance. As far as the record shows, the other peddle
drivers and Osborn did not attend and were not asked
whether they wanted to attend.
In accordance with a written request made by Ham-
montree, Carrington told the Multi-State Grievance
Committee during the hearing that after "all agreements"
between Respondent and the Union had been "can-
celled," Respondent had bid the runs four times; and that
8 Tilton initially testified that such grievances had been filed, and that
Carrington had later withdrawn them. Tilton later testified, however, "I
cannot be positive of that without talking to my manager, because I
handle numerous terminals" At all material times, Breeden has been Re-
spondent's dispatch operations manager at the Memphis termmal. Tilton
is in charge of Respondent's labor relations at more than 100 terminals.
CONSOLIDATED FREIGHTWAYS CORP. 1263
if Respondent was going to do away with departure
times, it should have done so on 26 February 1985, when
Tilton and Breeden had been formally advised by certi-
fied mail "that all agreements were cancelled." In re-
sponse to a question by an employer committee member,
who may also have been a member of the committee that
deadlocked as to grievance 180 (the December 1985
choice-of-runs grievance), Carrington stated that at the
expiration of the 1982-1985 contract, the Union had not
"listed the Article 6 conditions to [Respondent] to main-
tain the bid peddle rum departure times." Tilton told the
committee that in 1982, the Union had proposed "in ex-
change for a choice of runs, giving us departure times,"
and that Respondent had agreed. Tilton went on to say
that this agreement had remained in effect until, during
the February 1986 hearing before the Multi-State Com-
mittee on grievance 180, Carrington had said that he had
never made an agreement with Respondent that required
Respondent to have departure times on peddle runs,
whereupon Tilton had said, "Okay, I just want it on the
record so we can eliminate departure times on peddle
runs." Tilton further said that during the hearing on
grievance 180, he had told Carrington that the next bid
in peddle runs would not have bid departure times on
them. Carrington testified that as far as he knew, he in-
cluded in his presentation everything Hammontree asked
him to include.
After considering the case in executive session, the
Committee issued an opinion that reads, in its entirety,
"Denied, cost to Union."
Article 21 of the 1985-1988 bargaining agreement for-
bids "any discrimination against any employee because of
Union membership or activities." Article 37 forbids Re-
spondent to engage in "discriminatory acts prohibited by
law. Nothing herein. . . shall be construed to deny to
any employee the employment opportunities set forth
above. Any alleged denial of the aforesaid opportunities
in violation of this Article shall be submitted to the
grievance procedure." Carrington was aware of the pro-
visions of article 37; as to article 21, he testified that he
thought it was "more for the union stewards" (its princi-
pal subject) but, when Respondent's counsel directed
Carrington to the quoted language, he testified that it ex-
tended to any employee. Hairmiontree testified that he
was aware that a nondiscrimination clause was in the
contract, but that he had never had any occasion to have
anything to do with it and thought it was "just for
hiring."
Grievance 101 did not contain any allegation that de-
parture times had been removed because of prior griev-
ance filing by Hammontree; nor is any such allegation in-
cluded in the transcript of the grievance proceeding.
Hammontree testified that he never asked Carrington to
submit to the Multi-State Committee any grievance that
he had been discriminated against because of union ac-
tivities. Carrington credibly testified to the belief that
when he presented Hammoniree's grievance 101 to the
Multi-State Committee, Hammontree raised no allegation
of discrimination to Carrington. 9 He further credibly tes-
g He did tesiify, however, that after filing grievance 101, Hammontree
talked to him once or twice about being run at early hours in the morn-
tified that he presented no such allegation to the commit-
tee. Also, he testified that in presenting grievance 101, he
would have included a claim that Hammontree had been
discriminated against over the old bid departure times'
being taken away, if Hanunontree had made that claim
to Carrington and presented factual proof thereof. No
grievance was ever filed over alleged discrimination
against Hammontree in application of the dispatch
system without departure times, which system became
effective on the day Hammontree filed grievance 101.
Hammontree's charge in the instant NLRB proceed-
ing, filed on 12 September 1986, alleges that since about
16 July 1986, Respondent "by its officers, agents, and
representatives have [sic] discriminated against Paul
Hammontree and others because of his having filed
grievances," in violation of Section 8(a)(1) and (3).
Tilton credibly testified that on a date he was not asked
to give, but after this charge was filed, he told Respond-
ent's counsel that Tilton would agree to having Ham-
montree file a discrimination grievance and let it go
before the Multi-State Committee for consideration,
without any untimeliness claim by Respondent. By letter
dated 9 October 1986, before the issuance of the original
complaint, Respondent advised the Regional Office that
Hammontree's 8(a)(3) charge "is a charge of discrimina-
tion prohibited by law and, consequently, is a grievable
charge under [the Master Agreement]. The Company is
willing to participate in a grievance brought by Mr.
Hammontree with regard to such matter. Any such
grievance, of course, is to be conducted under" the con-
tractual grievance provisions.
The only 8(a)(3) allegations in the original complaint
averred that because Hammontree had filed grievances,
Respondent had (1) since about 15 July 1986, issued
Hammontree undesirable dispatch orders and assigned
him undesirable transportation runs; and (2) since about
12 March 1986, denied Harrunontree the opportunity to
earn increased wages." Respondent's November 1986
answer to this complaint alleged, inter alia:
FOURTH DEFENSE
Consideration of the merits of this complaint is
foreclosed, as the Board must defer to an award of
the Southern Multi-State Grievance Committee
("grievance committee") issued in August, 1986: (i)
under the express terms of the extant collective bar-
gaining agreement, the grievance committee's deci-
sions are final and binding on the parties; (ii) charg-
ing party filed a grievance covering essentially the
same subject matter as that involved in this unfair
labor practice case, and the contractual issues were
factually parallel to the unfair labor practice issues
here; (iii) the grievance committee was presented
ing and being required to remain by the telephone for long periods, to
which Carrington replied that Hammontree had bid the number one spot
and had to be available for the rust run. Also, Carrington testified that
Harrimontree and Osborn had remarked that Respondent was "going to
show us . . . we've done something here, and teed them off and now,
they' re going to put their foot down and make us [toe] the tine again as
they did in the [minimum driving time] case" (see supra sec II,A,1).
10 This second allegation was later withdrawn. See fn. I. supra.
1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
generally with the facts relevant to resolving the in-
stant unfair labor practice allegations; (iv) the griev-
ance committee proceedings were fair and regular;
and (v) the grievance committee's decision is not
clearly repugnant to the purposes and policies of
the Act. Accordingly, having pleaded ground for
deferral, respondent casts the burden of persuasion
on General Counsel to demonstrate that deferral is
improper
FIFTH DEFENSE
To the extent, if any, this complaint is predicated
on any new and different alleged violation of the
Act not previously presented to the grievance com-
mittee, deferral to the grievance-arbitration machin-
ery established by the collective bargaining agree-
ment is required: (i) any such alleged conduct is
clearly cognizable under the agreement, including
its grievance-arbitration provisions; (ii) respondent
has expressed willingness to arbitrate the dispute
and to waive any timeliness requirements; (iii)
access to the grievance-arbitration machinery is
available to charging party; (iv) respondent has
agreed to be bound by the grievance committee's
decision and there is no allegation that charging
party's collective bargaining representative is not
ready, willing and able to prosecute vigorously any
such grievance before the grievance committee; (v)
there are no obstacles preventing a quick and fair
resolution of the dispute by the grievance commit-
tee. Accordingly, having pleaded grounds for defer-
ral, respondent casts the burden of persuasion on
General Counsel to demonstrate why the Board
should not defer and give the contract grievance
machinery full scope and efficacy.
On 19 December 1986, the General Counsel amended
the complaint by, inter alia, adding the allegations that
Respondent violated Section 8(a)(3) about 15 July 1986
by discontinuing its practice of dispatching its peddle
drivers at scheduled departure times, and implementing
the practice of dispatching its peddle drivers from mid-
night to midnight, all because Hammontree filed griev-
ances in December 1985 and February 1986. Respond-
ent's 2 January 1987 answer to the amended complaint
avers, inter alia, that Hammontree "grieved Respondent's
posting of [peddle] runs without departure times, and as
set forth in the Fourth Defense of Respondent's Answer
to the [Original] Complaint, the Board must defer to the
award of the Southern Multi-State Grievance Committee
in Respondent's favor." By letter to the Regional Office
dated 5 February 1987, Respondent's counsel stated,
inter alio.:
• . . the company's deferral defenses are not based
solely on a single provision of the contract but. . .
the company intends to rely at trial on all relevant
provisions [of the master and supplemental agree-
ments] including, but not limited to, the prohibition
of discrimination because of union membership or
activities, provisions governing seniority, bidding,
work assignments, maintenance of standards, dis-
patching, etc.
As previously noted, the supplemental agreement pro-
vides that grievances not settled at the local level are to
be submitted to the Multi-State Committee, which is
composed of an equal number of members appointed by
employer parties and union parties to the agreement.
Grievances not disposed of by a majority vote of that
committee are automatically transferred to the Southern
Area Grievance Committee, which consists of an equal
number of members appointed by employers and unions
from the Southern Conference Area. "Both parties" are
bound by a decision of either committee by majority
vote. Grievances deadlocked at the area committee stage
are automatically transferred to the national grievance
committee, which consists of an equal number of em-
ployer and union representatives." Both Hammontree
and Carrington testified that so far as they knew, Re-
spondent had always complied with decisions of the
grievance committee; nor is there any evidence other-
wise.
F. Effect on Respondent and on the Peddle Drivers,
Including Hammontree, of Elimination of Scheduled
Departure Times
When the peddle drivers retained scheduled departure
times, no peddle driver could be required to report to
work before his scheduled departure time If a peddle
driver reported to work at his scheduled departure time,
he was entitled to receive at least 8 hours' pay unless, at
least 2 hours before his scheduled departure time, he had
been advised that his run had been canceled or delayed.
If he was thus timely advised that his run had been can-
celed, he was not entitled to be paid for the day, but did
not have to report for work again until, at the earliest,
his next scheduled departure time. If he was thus timely
advised that his run had been delayed, he was required
to remain available for call until he was advised to report
to work or until the following midnight, whichever first
occurred; but was guaranteed at least 8 hours' pay if he
was not called in to work during this period. The sched-
uled departure time attached to each peddle run on the
bulletin was selected by Respondent. However, these
scheduled departure times thereafter remained fixed until
the runs were bid again. 12 Moreover, if Respondent as-
signed a driver in the "extra board" to perform a peddle
trip between midnight and a regular peddle driver's
scheduled departure time, Respondent was thereby obli-
gated to guarantee 8 hours' pay to all the regular peddle
' 1 As far as relevant here, the parties cannot be contractually com-
pelled to arbitrate grievances deadlocked at the national grievance com-
mittee stage. The General Counsel concedes that the merits of Respond-
ent's deferral defense are not affected by the fact that grievances are con-
sidered by a bipartite committee rather than by an arbitrator. Denver-Chi-
cago Trucking Co., 132 NLRB 1416, 1421 fn. 6 (1961).
12 Although the bargaining agreement requires runs to be bulletmed at
least every 12 months, runs at the Memphis terminal were bulletined
every 6 months and, as noted, were bulletined in May and July 1986. The
record fails to show whether there were any upper limits on the frequen-
cy of bulletining.
CONSOLIDATED FREIGHTWAYS CORP. 1265
drivers. 13 On the other hand, if Respondent had chosen
regularly scheduled departure times, which were several
hours earlier than peddle runs were ordinarily ready, Re-
spondent would have run the risk of obligating itself to
pay a bid peddle driver for time not worked, either be-
cause it delayed him and then found out he was not
needed, or because it canceled him and then had to have
the run performed by an "extra driver." What Respond-
ent actually did do, between its 1982 institution of peddle
runs with scheduled departure times and its July 1986
withdrawal of scheduled departure times, was to attach
to its peddle runs various scheduled departure times in
half-hour intervals between about 4 and / p.m., the
period during which peddle runs ordinarily became
available, and to have "extra board" drivers perform any
peddle trips that were run earlier in the day. This system
meant that in determining when to assign runs, as to
peddle run,s that became available between midnight and
4 p.m., the dispatchers had to consider whether assigning
an extra-board driver thereto would cause Respondent to
pay regular peddle drivers for time not worked, as well
as the other factors that entered into the dispatchers' de-
cision about when to assign runs (such as minimizing
tractors' driving with empty or no trailers and assuring
timely delivery of rush loads).
The number of peddle runs bulletined is determined by
counting the number of peddle runs that ran during the
preceding 6 months, dividing that by 6, and taking 75
percent of the quotient; this calculation anticipates that
about 25 percent of all peddle freight will be carried by
"extra board" drivers. Respondent's witnesses were
unable to recall any instance where peddle-run drivers
were ever, paid for time not worked. On occasion, how-
ever, freight was delayed because Respondent was reluc-
tant to run such a risk by using "extra board" drivers.
Dispatcher Operations Manager Breeden testified that
the elimination of departure times for peddle runs afford-
ed Respondent "a little more flexibility." Dispatcher Jen-
nings testified that "we really appreciated flexibility of
the peddle drivers being on the bid like they are right
now, with no departure times, because there have been
several circumstances that would come up where we
could utilize a peddle man earlier than what the bid de-
parture time used to be." Labor Relations Manager
Tilton testified that the elimination of departure times for
peddle drivers afforded Respondent "a lot more flexibil-
ity," and that Respondent had received absolutely no
benefit from having departure times. Respondent's brief
states (p. 8), "The present system without departure
times provides the maximum possible flexibility to man-
agement."
Since Respondent removed scheduled departure times
from peddle runs, each peddle driver has had to remain
available for call between 2 hours before the beginning
of the calendar day, which begins his regular workweek,
until he is given his first run for that week. After he
completes his first tour of duty that week, he is required
" This may not have been true if the extra-board driver had been sent
Out because of an "act of God" or in some situations where the customer
needed speedy service. Respondent would have been compelled, howev-
er, to establish this defense in the grievance procedure.
to take 8 hours' rest and then must remain available for
call until he receives another dispatch. He is entitled to
receive at least 2 hours' notice of the first dispatch on his
tour of duty, but is not entitled to be advised of any de-
cision by Respondent not to use him at al1. 14 These re-
quirements continue until the midnight that ends the last
calendar day of his workweek. During this period of 122
hours, a driver who had not been given a 2-hour notice
to report to work, and who was not available for call at
a time when he was neither working nor required to take
an 8-hour rest, would receive a reprimand; if he receives
three reprimands within a 6-month period, he is subject
to discharge. A driver is considered available for call if
the dispatcher can reach him by calling his home tele-
phone, by calling a telephone number by which he has
advised the dispatcher in advance that the driver can be
reached, or (at least with the dispatcher's consent and if
the driver has been "reasonable") if the driver has under-
taken to and in fact does call back at a particular time to
check with the dispatcher. A driver is subject to repri-
mand, as not being available for call when he is supposed
to be available, if the dispatcher cannot reach the driver
because his telephone line (or the line of the telephone
number he has given the dispatcher) is busy. I so infer
because of Hammontree's uncontradicted testimony that
when he told dispatcher Jennings that Hammontree
could not get a second telephone line or call-waiting
service in his area, Jennings suggested that Hammontree
acquire a beeper and, when he did so, agreed to call him
on the beeper if his line was busy. The beeper costs
Hairunontree $17.20 a month. It will operate within 22
miles of Respondent's Memphis office, barely within the
radius of Hanunontree's home.
As previously noted, most loads are not ready for
peddle runs until after 4 p.m. Before deciding what
peddle run to bid in July 1986, when peddle runs began
to be bulletined without departure times, Hammontree
had been told by the dispatchers that the peddle runs
would be dispatched within approximately the same
timeframe as when peddle runs had been bid with depar-
ture times. As the senior driver who bid on peddle runs,
Hammontree could have obtained any of the four peddle
positions (numbered one through four). He bid for and
received the number one peddle-run position. This meant
that if rested, he would be the first driver called for a
peddle run during a dispatch day. Accordingly, his bid
position tended to maximize his earnings potential.
The peddle runs bid in July 1986 all called for a
Monday through Friday workweek. Between August
and mid-December, Hammontree's departure times on
Sundays varied between 12:21 a.m. and 5:30 p.m.; on
Tuesdays, Wednesdays, and Thursdays they varied be-
tween 12:01 a.m. and 8:10 p.m.; and on Fridays thus
varied between 3:27 a.m. and 5:12 p.m. During this same
14 When flammontree has called the dispatcher to find out when to
expect dispatch, the dispatcher sometimes tells him and sometimes says
that the dispatcher does not know. A driver is not supposed to be tele-
phoned by the dispatcher during the driver's 8-hour rest period. }lam-
montree has sometimes been instructed, however, at the terminal and just
before beginning his rest period, to report to the terminal agam in 8
hours.
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
period, his workweek ended at various times between
11:12 p.m. on Wednesday and 2:36 p.m. on Saturday. As
to Hammontree, at least, Respondent's records confirm
Hammontree's testimony that there was no particular re-
lationship between the hour of the day he began to work
on Monday and the hour he began to work on Friday,
rather than Breeden's testimony that "Once they get in
the cycle. . . they are in the cycle all week if business is
good." 15 During this same period, the other peddle driv-
ers began work on Mondays no earlier than 1 p.m. and
no later than 6:47 p.m. Also during this period, the other
peddle drivers began work on Tuesdays, Wednesdays,
and Thursdays no earlier than 7 a.m. and no later than
11:41 p.m.; and began Work on Fridays no earlier than
1:12 p.m. and no later than 11:03 p.m. On some occasions
during this period, Hammontree successfully filed run-
around grievances and a choice-of-destination grievance,
all of which claims were paid by Respondent.
Month Earliest Mon. DepartureTime
Fri. Departure Time That
Wk Latest Mon. Departure Time
Fri Departure Time That
Wk.
Aug. 8 a.m. (25) 11 a.m. (29) 4:39 p.m. (18) 4 p.m. (22)
Sept. 2 a.m. (22) , 3:27 a.m. (26) 4:37 p.m. (15) 11:42 a.m. (19)
Oct. 3:55 a.m. (6) 5:12 p.m. (10) 5:20 p.m. (13) 2:59 p.m. (17)
Nov. 12:21 a.m. (3) None: last departure was
8:10 p.m. on Thursday 5:27 p.m. (10) 4:50 p.m. (14)
About the end of January 1987, the peddle runs were
rebid. Hammontree bid for and obtained the number the
position. At the time of the hearing before me (on 9 and
10 February 1987, a Monday and Tuesday), he had occu-
pied this position, and peddle driver Bennett had occu-
pied the number one position, for about a week. During
this week, Hammontree received only one daytime run,
and Bennett received no early runs.
Hammontree testified that on one occasion he was
called in on a Sunday night and instructed to pick up a
tractor with a loaded trailer in Memphis and pull the
trailer to Blytheville, Arkansas, which is due north of
and about 68 miles from Memphis. He went on to testify
that he reached Blytheville about 1:30 a.m.; bobtailed
(i.e., drove his tractor without a trailer) to Jonesboro,
Arkansas (a little southwest of and about 55 miles from
Blythedale), which he reached about 2:30 or 2:45 a.m.;
and then bobtailed back to Memphis (southeast of and
about 70 miles from Jonesboro). Hammontree want on to
testify that the Blytheville and Jonesboro terminals were
not open when he reached them, and that they ordinarily
open about 7 or 8 a.m. He testified that these events oc-
curred "back in the first part of December" 1986, and
not in Christmas week or New Year's week. Hammon-
tree's testimony in this respect is not consistent with Re-
spondent's records for Monday, I December, or
Monday, 8 December, the only two December Mondays
covered by the exhibits.
Hammontree further testified that "about the last of
November" 1986, he was called out at 10 p.m. on
Sunday; hauled a loaded trailer to Tupelo, Mississippi
(about 104 miles from Memphis), which he reached
about 2 a.m.; bobtailed back to Memphis; hauled another
loaded trailer to Jackson, Tennessee (about 80 miles from
Memphis), which he reached about 4:30 a.m.; and bob-
tailed back. The Jackson terminal was open when he got
there; he did not in terms testify that the Tupelo terminal
was closed when he got there. Respondent's records dis-
close no Monday following Monday, 3 November, and
12 A tabular summary shows as follows (numbers m parentheses are
dafegThese were the terminals served by the Memphis peddle drivers.
3 Inferentially, Tilton was referring to Carrington's letter dated 26
no Monday in December, consistent with the schedule
he testified to.
G. Analysis and Conclusions
1. The 8(a)(3) allegations
a. Requested deferral to contractual grievance
procedure
Respondent contends that at least as to the 8(a)(3) alle-
gations based on Respondent's elimination of scheduled
departure times from peddle runs and its implementation
of a practice of dispatching peddle drivers on a mid-
night-to-midnight basis, the complaint should be dis-
missed because in August 1986, the Multi-State Griev-
ance Committee denied Hammontree's grievance with
respect to such matters. The only issue presented to the
grievance committee, however, was whether such action
violated the contractual provisions with respect to se-
niority and maintenance of standards; no claim was ad-
vanced that such action violated the contractual no-dis-
crimination clauses. Moreover, the undisputed evidence
preponderantly shows that the grievance committee was
not presented with any information bearing on the alle-
gation that (as the instant complaint alleges) Respondent
took the grieved action because of Hammontree's prior
grievance activity. It is true that during the grievance
hearing, Tilton stated that Respondent had eliminated de-
parture times on peddle runs because the Union had can-
celed an agreement calling for such departure times in
exchange for a choice of runs, and further stated that
when grievance 180 (Hammontree's choice-of-runs griev-
ance) was in the grievance procedure, Tilton had told
Hatnmontree that the next peddle-run bid would not
have departure times, the transcript of the departure-
times grievance hearing, however, contains no claim
from Tilton that the canceled agreement included any re-
strictions on the filing or processing of grievances. Ac-
cordingly, Board precedent calls for rejection of Re-
CONSOLIDATED FREIGHTWAYS CORP. 1267
spondent's claim that the agency should defer to the
Committee's decision."
Respondent further contends that even if the discrimi-
nation issue were deemed to be unresolved by the com-
mittee decision, the agency should defer and require
Hammontree to present that specific issue to the Com-
mittee. As Respondent's brief "acknowledges" (p. 38),
"there is Board precedent that an individual, as opposed
to a labor organization, should not be required to resort
to the contractual grievance machinery for possible reso-
lution of issues raised in an unfair labor practice charge."
United Technologies Corp., 268 NLRB 557, 560 fn. 17
(1984). Moreover, the Board decisions in the cases cited
supra fn. 16 indicate that policy to be applicable where
(as here) the individual charging party had in fact filed a
grievance, but neither the unfair labor practice issue nor
the facts relevant thereto were presented in connection
with the grievance. However, Respondent contends that
applying this policy would be inappropriate here because
(brief pp. 39-40, emphasis in original), "The 'discrimina-
tion' of which [Hammontree] complains was not some
action taken by an employer against an individual em-
ployee because he had complained or asserted a contract
right, but action taken in the course of collective bargaining
with the individual's exclusive bargaining representative.
This is precisely the type of claim in which . . . the
union has even greater incentive than the individual to
pursue that claim."
A principal difficulty with this argument by Respond-
ent is that it begs the question as to Respondent's motive
for the personnel action attacked in the complaint. As
discussed infra, sec. II,G,1,b, the General Counsel alleges
(and indeed, Respondent's counsel has at certain points
admitted) that Respondent took such action because
Hammontree pursued grievance 180 before the commit-
tee. The General Counsel makes no claim that Respond-
ent's action would have violated Section 8(a)(3) if (1)
Respondent had had an agreement with the Union that
solely consisted of departure times in exchange for no
choice of runs, and (2) Respondent withdrew departure
times solely because the area committee's ruling in griev-
ance 180 meant that drivers were contractually entitled
to choice of runs under some circumstances. Moreover,
as discussed infra, the instant case does not present the
question of whether Respondent's action would have
violated Section 8(a)(3) if (1) Respondent had had an
agreement with the Union that consisted of departure
times in exchange for no choice of runs plus an undertak-
ing not to take choice-of-runs grievances to the commit-
tee and (2) Respondent's sole even arguably unlawful
motive for removing departure times was a union breach
of this agreement by taking such a grievance (i.e., griev-
ance 180) to the committee. Further, in view of the
impact of eliminating scheduled departure times on Ham-
montree's personal life (see supra, sec. II,F), I have some
doubt whether the Union has more incentive than he in
attempting to reclaim such departure times. In view of
18 Hendrickson Bros., 272 NLRB 438, 439-440 (1985) , enfd. mem. 762
F.2d 990 (2d Cir. 1985), Ryder/P.I.E. Nationwide, 278 NLRB 713, 717
(1986), modified on other grounds 810 F.2d 502 (5th Cir. 1987); Aces Me-
chanical Corp., 282 NLRB 928, 929-931) (1987).
the cited 'language in United Technologies, supra, 268
NLRB at 560, fn. 17, I reject Respondent's claim that the
8(a)(3) allegations should be deferred to the contractual
grievance procedure.
Because of Respondent's contention that most of the
issues presented in the instant case should be deferred to
the contractual grievance procedure, I have up to this
point refrained from resolving any credibility issues here.
See Carpenters 46 Conference Board (Refrigeration
Design), 278 NLRB 122, 123 (1986): L. E. Myers Co., 270
NLRB 1010 fn. 2 (1984); Servomation Corp., 271 NLRB
1112, 1113 fn. 7 (1984). In view of my rejection of this
deferral contention, at this point I make certain credibil-
ity fmdings. As to Breeden's remarks on 25 February
1986 while the parties were awaiting the Multi-State
Committee's decision on the choice-of-runs grievance
(supra sec. II,C), I credit Hammontree over Breeden, for
demeanor reasons and because Breeden's remarks as tes-
tified to by Hammontree were similar to Breeden's re-
marks during their earlier, tape-recorded conversation.
Whether the discussion of this grievance on 17 February
included the choice of runs on second departure, I credit
Carrington that this subject was included, and discredit
Breeden's testimony otherwise, for demeanor reasons and
because the incident described in the grievance took
place on a second dispatch. Other credibility issues are
resolved below.
b. Whether Respondent violated Section 8(aX3) and
(1) by discontinuing its practice of dispatching its
peddle run drivers at scheduled departure times and
implementing the practice of dispatching such driv-
ers from midnight to midnight.
As the Supreme Court observed in NLRB v. City Dis-
posal Systems, 465 U.S. 822, 836 (1984):
. . . the principal tool by which an employee in-
vokes the rights granted him in a collective-bargain-
ing agreement is the processing of a grievance ac-
cording to whatever procedures his collective-bar-
gaining agreement establishes. No one doubts that
the processing of a grievance in such a manner is
concerted activity within the meaning of § 7. See,
e.g., IV.L.R.B. v. Ford Motor Co., 683 F.2d 156, 159
(C.A. 6 1982) •' . . Indeed, it would make little
sense for § 7 to cover an employee's conduct while
negotiating a collective-bargaining agreement, in-
cluding a grievance mechanism by which to protect
the rights created by the agreement, but not to
cover an employee's attempt to utiii7e that mecha-
nism to enforce the agreement.
Accord: Welco Industries, 237 NLRB 294 (1978), enfd.
653 F, 2d 231 (6th Cir. 1981). This statutory protection
extends to an employee's presentation of a grievance
through his statutory representative, as well as to his
presentation of that grievance alone;" to an employee's
17 City Service Insulation Co., 266 NLRB 654, 658 (1983); Unico Re-
placement Parts, 281 NLRB 309, 315 (1986).
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
refuSal to withdraw a grievance, as well as to his action
in filing it; 18 and to his prosecution of his grievance to
the fullest." Moreover, employer reprisals for protected
grievance activity are forbidden not only with respect to
the grievant himself, but also with respect to other em-
ployees. 2 ° On the basis of these principles, I conclude
that Respondent violated Section 8(a)(3) and (1) of the
Act by discontinuing the practice of dispatching the
peddle run drivers at scheduled departure times, and im-
plementing the practice of dispatching such drivers from
midnight to midnight, all because peddle run driver
Hamanontree's December 1985 choice-of-runs grievance
was pursued to the Multi-State Grievance Committee.
Initially, the record evidence calls for a finding that
Respondent withdrew scheduled departure times at least
partly because the grievance filed by employee Ham-
montree was pursued to the Multi-State Committee.
Thus, in January 1986, Dispatch Operations Manager
Breeden repeatedly told Hammontree that if his Decem-
ber 1985 choice-of-runs grievance went to the Multi-
State Grievance Committee, Breeden would pull the de-
parture times off the peddle runs, and Hammontree
would have to sit by the telephone all day.. On 13 Febru-
ary, Breeden advised Manager of Labor Relations Tilton
in writing that if Hammontree's grievance "goes to
grievance," Breeden would eliminate the bid departures.
A few days later, Breeden admittedly told Union Presi-
dent Carrington that if Hammontree's choice-of-runs
grievance was presented to the Multi-State Grievance
committee, Breeden was going to remove scheduled de-
parture times. On Carrington's statement that he had to
take the grievance to the committee, Breeden admittedly
said that the results would be, "We're going to eliminate
the departure time." Tilton admittedly told the Union
that if it took Hammontree's choice-of-run grievance to
the committee, departure times would be "gone." Bree-
den testified to telling the Union, over a period of 3 or 4
years before Hammontree filed that grievance, that "we
were going to eliminate the departure times if [choice of
runs] went to grievance." While the parties were await-
ing the committee's decision on Hammontree's choice-of-
runs grievance, Breeden told Hammontree that "the de-
parture times are removed"; and that (according to Ham-
montrees credited version) Respondent was going to
have Hammontree sitting by the telephone 24 hours a
day, or (according to Breeden) "There will be times that
you will have to. . . sit by the phone waiting on a call
to go to work"; Breeden's testimony added that the same
would also be true for the other peddle drivers. In late
July 1986, after the departure times were removed from
the peddle-run bulletining, Breeden told employee
Osborn that he could "thank" Hammontree for taking off
the departure times. Manager of Labor Relations Tilton
testified at the hearing before me that the departure
times were removed:
19 Spring Industries, 274 NLRB 998, 999-1002 (1985), enfd. 800 F.2d
595 (6th dr. 1986); Champion Parts Rebuilders, 260 NLRB 740-742
(1982), enfd. in this respect 717 F.2d 845, 850-851 (3d dir. 1983).
19 Superior Forwarding Co., 282 NLRB 806 (1987).
29 Unico Replacement Parts, supra, 281 NLRB at 312, 314. See also
Birch Run Welding & Fabricating v. NLRB, 761 F.2d 1175, 1180 (6th dir.
1985), and cases cited.
Because the [1982] agreement was null and void
. . • I feel as Labor Relations, that I cannot go
before a committee and have to -hear something that
number one, is outside the contract and we had an
agreement. And if I am • going to have to go and
justify our agreement, we might as well just null
and void everything. And when they filed the griev-
ance, it was all over with so far as I was concerned.
[Emphasis added.]
. . . .
. . . we had an agreement to not have any type of
grievances or any type of problems with the desti-
nation choices. When this occurred, the grievance
was filed, it was my decision that the entire agree-
ment was null and void.
In view of the foregoing evidence, I conclude that Re-
spondent removed the departure times at least partly be-
cause Hammontree's choice-of-runs grievance went to
the committee. Indeed, this is virtually conceded in Re-
spondent's opening statement and in its brief. The open-
ing statement of Respondent's counsel averred:
The respondent's proof. . . will show that in fact
Mr. Hammontree . . . was told and we submit hon-
estly, as was the union representative on more than
one occasion, sometimes together, that if . . . the
issue of choice of rides . . . was taken to the com-
mittee then the company would exercise its right to
remove departure times.
. . . .
. . . it was said very plainly, "If we have to defend
this, if we go to the committee, then we are going
to exercise our right to take this maintenance of
standard, we will have it grieved or you can grieve
it after we have removed it.["]
We submit, Your Honor, that if Your Honor
finds, and we think that you will, that the company
did have the legal right to remove the departure
times for the reasons stated, because it didn't want
to have grievances and disputes over a practice that
it was not contractually obligated to have in the
first place . . . . Your Honor will have to find that
there is no . . . 8(a)(1) in telling an employee it is
going to exercise that right and doing it openly in
the presence of a union representative.
Similarly, at one point (p. 26) Respondent's brief de-
scribes Respondent's position as "it would remove the
departure times if the grievance went to the committee!'
That brief elsewhere refers (p. 30) to Respondent's "firm
position that if the 1982 agreement was not adhered to
and the grievance withdrawn in Case No. 180, [Respond-
ent] felt entitled to get back its part of the bargain and
would do so." At still another point, Respondent's brief
states (pp. 40-41, emphasis added):
If the merits are reached, the issue is the employer's
true motive in removing the departure times. There
is simply no doubt on that question. This employer
has consistently taken the position that where it has
CONSOLIDATED FREIGHTWAYS CORP. 1269
a local agreement or understanding by which the
union surrenders some right or colorable claim
under the collective bargaining agreement in return
for the employer's extension of a benefit or practice
not contractually required, the employer will with-
draw that benefit or practice if the union reneges on
the local agreement by presenting a claim to the com-
mittee seeking rights surrendered under the local
agreement. The overwhelming evidence is that the
company took that same position in this case and dis-
continued the scheduled departure times for that
reason.
As indicated by the quoted portions of Respondent's
brief, Respondent contends that the February 1986 pres-
entation to the Multi-State Grievance Committee of
Hatrunontree's choice-of-runs grievance did not consti-
tute an unlawful motive for Respondent's July 1986
action in removing departure times, because the Union
had allegedly agreed that in return for departure times,
no grievance with such allegations would be presented
to the committee. However, under the 1985-1988 bar-
gaining agreement, the 1982 agreement regarding depar-
ture times, choice of runs, and choice-of-runs grievances
expired, at the very latest, at the end of September 1985,
on the parties' failure to reduce the agreement to writing
within 180 days after 1 April 1985, the effective date of
the 1985-1988 contract (see supra sec. II,A,2). Moreover,
in February 1985 Carrington had advised Tilton in writ-
ing that if the Union and Respondent had any agree-
ments, they would become "null and void" on the April
1985 expiration of the 1982-1985 agreement. In view of
the clarity of this February 1985 letter, and for demeanor
reasons, I do not regard as honest Tilton's rather equivo-
cal testimony that he regarded the 1982 oral agreement
about departure times as remaining in effect after Sep-
tember 1985 notwithstanding both Carrington's February
1985 letter and article 6 of the 1985-1988 bargaining
agreement. Also, in view of the clarity of that letter, I do
not regard as sincere Tilton's similar representation to
the Multi-State Committee on 26 August 1982. More-
over, during the 25 February 1986 hearing on the
choice-of-runs grievance, Carrington stated in Tilton's
presence that the Union had no agreements with Re-
spondent regarding departure times; and during the 26
August 1986 hearing on the departure-times grievance,
Tilton stated that after that statement by Carrington, the
1982 agreement was no longer in effect. 21 Moreover, the
parties' 1986 agreement regarding minimum running time
(see sec. II,A,1, supra) dries not purport to cover claims
with respect to choice of runs.22
21 Tilton's then summary of the 1982 agreement, however, was incom-
plete. Before the committee, he described the agreement as "in exchange
for a choice of runs, givmg rthe Umon] departure times." Tilton testified
before me that under this agreement, if a peddle driver were to present a
claim of choice of runs or destinations at the window or otherwise, the
Union was to withdraw the case and discharge the responsibility of in-
forming the driver that the Union and Respondent had a working agree-
ment on peddle runs.
22 Accordingly, I need not and do not determine whether the Union
could effectively waive Hammontree's statutory right to pursue his griev-
ance throughout the contractual grievance procedure. Cf. Metropolitan
Edison Co. V. NLRB, 460 U.S. 693, 705-706 (1983)
For the foregoing reasons, I find that the General
Counsel has made a prima facie showing that Respond-
ent withdrew departure times at least partly because
Hammontree engaged in the protected union activity of
filing a grievance, which was pursued to the Multi-State
Grievance Committee. Accordingly, the burden is on
Respondent to prove by a preponderance of the evidence
that such action as to departure times would have been
taken even absent this grievance activity. 23 Respondent
has failed to discharge that burden. Although the remov-
al of departure times did advantage. Respondent by
making dispatch procedures more flexible, Respondent
observed departure times from 1982 until after Hammon-
tree's grievance 180 had been heard by the Multi-State
Grievance Committee in 1986; indeed, as far as the
record shows, Respondent had previously referred to the
removal of departure times only when stating that it
would do this if a choice-of-run grievance was taken to
the Multi-State Committee. Respondent may be contend-
ing that it eliminated departure times in July 1986 partly
because it and the Union were authoritatively advised
that under some circumstances, peddle drivers had
choice of runs; and at least in Respondent's opinion, the
absence of that choice was among the benefits that Re-
spondent had obtained in the 1982 agreement that was
the historic origin of departure times for peddle drivers.
Such a contention as to Respondent's motive would
appear difficult to square with Tilton's then opinion that
Respondent's continuation of departure times after June
1985 was required by the maintenance-of-standards
clause in the 1985-1988 master freight agreement (see
supra, sec. II,E). In any event Tilton testified that Re-
spondent's determination to remove departure times "had
nothing to do with [the area committee's] decision."
Moreover, he and Breeden admitted that the decision to
remove departure times had been reached as of the time
the Multi-State Grievance Committee met in executive
session to consider Hammontree's choice-of-runs griev-
ance, which was deadlocked at that level and was not
decided in Hammontree's favor until the Southern Area
Grievance Committee's ruling more than 2 months later.
Although departure times were not eliminated until after
the area committee's June 1986 decision, and were in-
cluded in the May 1986 bulletining after the Multi-State
Committee had deadlocked, Tilton testified that such in-
clusion was merely an oversight. Accordingly, I need
not and do not consider whether Respondent would
have violated the Act if it had removed departure times
solely because the area committee's final and binding de-
cision on the merits of grievance 180 may have meant
that respondent was thereafter obligated under some cir-
cumstances to afford choice of runs to peddle drivers.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discontinuing
its practice of dispatching its peddle run drivers at sched-
23 NLRB V. Transportation Management Corp, 462 U.S. 393, 398-404
(1983); NLRB v. Health Care Logistics, 784 F.2d 232 (6th Or 1986);
NLRB v. Jefferson Electric Co, 783 F 26 679 (6th Or. 1986); Vought
Corp., 273 NLRB 1290, 1292-1293 (1984), enfd. 788 F.2d 1378 (8th Cir
1986), Schurpack, Inc., 283 NLRB 188, fn. 1 (1987).
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tiled departure times and by implementing the practice of
dispatching such drivers from midnight to midnight.
c. Whether Respondent violated Section 8(a)(3) and
(1), commencing about 15 July 1986 by issuing
undesirable dispatch orders and assigning undesirable
runs to Hammontree
The General Counsel further contends (Br. 17) that
after the withdrawal of departure times and while Ham-
montree occupied the number one peddle position, Re-
spondent "took advantage of Hammontree being in this
number one bid position and utilized him at extremely di-
verse hours," because of his grievance activity. The
record shows that Hammontree failed to withdraw griev-
ance 180, and permitted it to go to the Multi-State
Grievance Committee, notwithstanding repeated state-
ments from Breeden that if that grievance went to the
committee, departure times would be eliminated and
Hammontree would have to sit by the telephone. Fur-
ther, I credit Hammontree's testimony that on one occa-
sion in December 1986 he was called by the dispatcher
on a Sunday night which I find to be 14 December, and,
after delivering at 1:30 a.m. on Monday a load to a ter-
minal that was closed and would not ordinarily open for
several hours after his arrival, bobtailed to another
closed terminal not ordinarily open until several hours
later and then bobtailed back to Memphis. 24 I conclude
that the General Counsel has made a prima facie show-
ing that Respondent gave Hammontree this assignment
at least partly to punish him for his grievance activity.
Accordingly, the burden is on Respondent to prove by a
preponderance of the evidence that he would have been
given this assignment even absent his grievance activity
(see supra, fn. 23). Respondent has failed to discharge
this burden. It is true that Jennings, who sets up or co-
ordinates the peddle runs, testified that he had never de-
liberately dispatched Hammontree in the morning to
punish him, had never instructed other dispatchers to do
so, had never discussed with them any special handling
of Hammontree, and had never been told by Breeden or
anyone else in Respondent's upper management to dis-
patch Hammontree at any particular times during the
day. Moreover, Breeden denied having instructed Jen-
nings or any of the other dispatchers to give Hammon-
tree undesirable runs or dispatches. Respondent, howev-
er, has suggested no legitimate reason (nor can I con-
ceive of any) for requiring Hammontree to bobtail from
one closed terminal to another closed terminal between
1:30 and 2:45 a.m, on a Monday morning, and from that
closed terminal to bobtail back to Memphis. According-
ly, I find that this particular assignment was issued to
Hammontree to punish him for his grievance activity, in
violation of Section 8(a)(3) and (1) of the Act.25
24 It is true that he timed this incident as occurring in the first part of
December, and that Respondent's records show it could not have oc-
curred on either Monday, 1 December, or Monday, 8 December. Re-
spondent's records for the remaining Mondays in December, however,
are not in evidence and Hammontree's testimony in this respect is other-
wise uncontradicted.
25 I find it unnecessary to determine whether to credit Hammontree's
testimony about an occasion where, very early on a Monday mornmg, he
allegedly had to carry a load from Memphis to Tupelo, bobtail back to
The record fails preponderantly to show, however,
that at any other time during this period, the diversity of
the hours Hammontree was assigned to work was moti-
vated by his grievance activity. It is true That during the
period in question, Hammontree's hours were somewhat
more irregular than those of the other peddle drivers.
The fact that Hammontree occupied the number one bid
position meant, however, that Respondent was required
to give him the first peddle dispatch after midnight if he
was rested, as he always would be as of he beginning of
Monday. Moreover, Breeden testified that on a normal
Monday, Respondent has one very early peddle run
(which the number one bid man would get) and the rest
of the day is slow. These portions of the complaint will
be dismissed.
2. The independent 8(a)(1) allegations
The undisputed and credible evidence shows that
about 1 July 1986, Breeden told Hammontree, "Well,
you won [grievance] 180, you won it but you're going to
regret it . . . . I'm going to pull the starting times off
the runs and you will sit by the telephone . . . . You
filed that grievance and we had an agreement and the
agreement is cancelled so we're pulling the starting
times." I conclude that when Breeden thus asserted that
he would eliminate departure times (to the drivers' disad-
vantage) at least partly because Hammontree "filed that
grievance," Respondent violated Section 8(aX1) of the
Act. Danish Creamery Assn., 265 NLRB 652, 653-654
(1982). It is true that Breeden initially relied on the fact
that Hammontree had won his grievance, which under
the particular circumstances of this case might have con-
stituted a lawful motive for elimination of scheduled de-
parture times if no other motive existed. Respondent
would be in no position to claim that this wholly coun-
teracted the coercive tendency of Breeden's subsequent
remarks, particularly because on previous occasions,
however, Breeden had told Hammontree that such
action as to departure times would be taken if Hammon-
tree merely took his grievance to the Multi-State Com-
mittee. Cf. J. C. Penney Co., 266 NLRB 1223, 1224
(1983).
Respondent errs in relying on Breeden's references to
an "agreement." As previously found, both Breeden and
Hammontree had attended the February 1986 hearing on
grievance 180, where both Carrington and Tilton had
stated that there was no agreement that Respondent
would have departure times. Moreover, it was Hammon-
tree who had led Carrington to advise Respondent, by
his February 1985 letter, that any agreements between
Respondent and the Union would become "null and
void" on the March 1985 expiration of the then-existing
Memphis, carry a load to Jackson, and bobtail back to Memphis again.
The Jackson terminal was open when he got there, and there is no clear
evidence that the Tupelo terminal was closed Moreover, the need for
the load and/or the trailer at such locations may have outweighed the
loss involved in bobtailing.
The complaint —does not allege any unfair labor practice based on re-
marks by Breeden that employee Bennett attributed to him; and (even if
credited) Bennett's testimony about such remarks have little beanng on
the issues here. Accordingly, and even though such testimony is uncon-
tradicted, I fmd it unnecessary to determine whether to credit it.
CONSOLIDATED FREIGHTWAYS CORP. 1271
contract. Finally, Breeden failed to advise Hammontree
of the terms of the "agreement" cited by Breeden, and
left open whether that agreement included a union un-
dertaking that certain grievances would not be taken to
the Multi-State Committee. 26 An allegation by Breeden
that such an undertaking had been canceled would
hardly cure the coercive tendency of his assertion that
because Hammontree had filed such a grievance, depar-
ture times would be withdrawn.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3. Respondent has violated Section 8(a)(3) and (1) of
the Act by discontinuing the practice of dispatching its
peddle run drivers at scheduled departure times and by
implementing the practice of dispatching such drivers
from midnight to midnight.
4. Respondent has violated Section 8(aX3) and (1) of
the Act on 14 and 15 December 1986 by issuing an unde-
sirable dispatch order and assigning an undesirable run to
employee Paul Hammontree.
5. Respondent violated Section 8(a)(1) of the Act
about 1 July 1986 when Supervisor Breeden told em-
ployee Hanunontree that less desirable working condi-
tions would be imposed because he filed a grievance.
6. The unfair labor practices set forth in Conclusions
of Law 3, 4, and 5 affect commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
7. Except to the extent found in Conclusions of Law 3
and 4, Respondent has not violated Section 8(aX3) of the
Act with respect to Paul Hammontree.
26 As previously noted, in January 1986 Breeden had at least suggested
to Hanmiontree that the canceled agreement had included such an under-
taking.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist from such conduct, and like
or related conduct, and to take certain affirmative action
to effectuate the policies of the Act.
Respondent will be required to resume at its Memphis
terminal the practice of including scheduled departure
times in bulletins for peddle runs. Further, in order to
assure the prompt restoration of scheduled departure
times, peddle runs with scheduled departure times are to
be bulletined at the Memphis terminal immediately,
whether peddle runs would otherwise have been bulle-
tined at that time. Further, all employees who worked as
peddle drivers at the Memphis terminal between the date
that scheduled departure times were removed and the
date that they are restored are to be made whole for any
loss of pay they may have suffered by reason of the ap-
plication to them of this unlawfully motivated change.
Backpay shall be computed in accordance with the for-
mula set forth in F. W. Woolworth Co., 90 NLRB 289
(1950). In addition, Respondent will be required to make
Hammontree whole for the amounts he has had to pay to
rent his beeper for the purpose of conforming to the Un-
lawfully motivated change in the dispatching system. As
to backpay and reimbursement for the cost of Hammon-
tree's beeper, interest will be required as prescribed in
Florida Steel Corp., 231 NLRB 651 (1977). 27 Also, Re-
spondent will be required to post appropriate notices.
As to the General Counsel's request for a visitatorial
clause, the only justifying factor peculiar to this case is
the possible difficulty of computing the amount of back-
pay due. The Board has found this consideration insuffi-
cient to warrant such a clause. Armstrong Rubber Co.,
283 NLRB 625 (1987). Accordingly, the request will be
rejected.
[Recommended Order omitted from publication.]
27 See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1962).