Gateway Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1971

193 N.L.R.B. 47 (N.L.R.B. 1971)

GATEWAY TRANSPORTATION CO.
Gateway Transportation Co., Inc . and Floyd Prince.
Case 13-CA-10151
September 7, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 10, 1971, Trial Examiner Paul Bisgyer
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged
unfair labor practices. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the supporting
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Gateway Transportation Co., Inc.,
Chicago Ridge, Illinois, its officers, agents, successors,
and assigns , shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Trial Examiner: This proceeding, with all
the parties represented, was heard on January 27, 1971, in
Chicago, Illinois, on the complaint of the General Counsel
issued on December 11, 1970,1 and the answer of Gateway
193 NLRB No. I
47
Transportation Co., Inc., herein called the Respondent or
Company. The issue litigated in this case is whether the
Respondent, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended,2 threatened the charging
party, Floyd Prince, with reprisals , assaulted him, and
subsequently issued three disciplinary warning letters, for
engaging in protected, concerted activity in protesting the
Company's designation of a casual employee as a group
leader and invoking the assistance of the employees'
bargaining agent3 to press this grievance , as well as his
claim for 15 minutes overtime pay. At the close of the
General Counsel' s case , the Respondent moved to dismiss
the complaint. After hearing argument, the motion was
denied and the Respondent rested . Thereafter, the General
Counsel and the Respondent submitted briefs in support of
their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses , and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged in
the interstate motor truck transportation of commodities.
One of its terminal facilities is located in Chicago Ridge,
Illinois, where the alleged unfair labor practices occurred.
The Respondent's gross annual revenues derived from the
transportation of freight between and among the various
states exceed $100,000.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is conceded , and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
It is the contractual bargaining representative of the
Respondent 's employees in a unit described below.4
i The complaint is based on a charge filed by Floyd Prince on October
19, 1970, a copy of which was duly served on the Respondent by registered
mail the same day.
2 Sec 8(a)(1) of the Act makes it an unfair labor practice for an
employer "to interfere with , restrain , or coerce employees in the exercise of
the rights guaranteed in section 7." Insofar as pertinent , Sec 7 provides
that "[e ]mployees shall have the right to self-organization , to form, loin, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection
3 The full name of the bargaining agent, herein called the Union, is
Highway Drivers, Dockmen, Spotters , Rampmen , Meat , Packing House
and Allied Products Drivers and Helpers , Office Workers and
Miscellaneous Employees, Local Union No 710, of the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America
4 The parties' current contract , which runs from April 1, 1970 through
March 31, 1973, defines the unit as consisting of "Spotters ( Hostlers),
Fuelmen , Working Foremen , Dock , Tractor Drivers , Checkers , Stackers,
Truckers, Wheelers and Office and Miscellaneous Truck Terminal
Employees "
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
The events out of which the alleged unfair labor practices
arose are, as follows:
1. The September 25 overtime dispute
On September 25, 1970,5 Floyd Prince, a dockman in the
Respondent's employ for some 12 years, volunteered to
work overtime beyond his regular 6 p.m. to 2:30 a.m. shift.
While he and other employees were taking a customary
coffeebreak about 4:30 a.m., Ron Sanstrom, who was
identified as a foreman-in-training, ordered them to return
to work and threatened to send them home for taking an
unauthorized break. Shortly thereafter, Foreman Lloyd
Hendricks told Prince and other employees to leave the
terminal , retaining only three regular employees with "top
seniority . . . on the shift" for further overtime. Prince
thereupon went to the timeclock and, in accordance with
the prevailing practice,6 waited about 5 minutes to punch
out at 5 a.m. Subsequently, without Prince's knowledge,
Thomas W. Reilly, the assistant to the terminal manager,
changed the timecards of Prince and other employees who
had clocked out with him to show a 4:45 a.m. clockout
time, thereby depriving them of 15 minutes overtime pay.
On September 26, when Prince reported for work on the
Saturday premium shift of 8:30 a.m. to 5 p.m., he noticed
the 15-minute deduction on his timecard, which was
initialled by Reilly. He also observed that the same change
was made on the timecards of two other employees but not
on the card of a similarly situated third employee who had
less seniority. Prince promptly called the matter to the
attention of Union Steward Ralph Klein and requested that
Business Agent Wsol be advised to come to the terminal to
adjust the matter.
About 7:30 in the evening of October 1, while Prince was
on a coffeebreak, he met Wsol, who was at the terminal in
connection with an unrelated grievance. Prince complained
to Wsol concerning the 15-minute overtime deduction,
referring to another instance of asserted unfair treatment he
had received a year before at the hands of Reilly. Wsol
assured Prince that he would try to persuade Reilly to
restore the 15 minutes and, if those efforts failed, that the
Union would file a grievance. After this conversation, Wsol
discussed the matter with Reilly who justified the deduction
5 All dates refer to 1970.
6 Prince testified, without contradiction, that it was company policy for
employees to clock out on the hour
r A casual employee does not work regularly, only on a day-to-day
basis
8 Prince further testified on cross-examination that several employees
had also reported Costello to Union Steward Klein who informed Prince
that he had given Reilly a deadline to place Costello on the regular payroll
as a working foreman
9 This account is based on Prince 's undisputed testimony . I find without
probative value Reilly 's testimony that he was informed by Sanstrom, a
foreman trainee, that he (Sanstrom) had learned that Prince had criticized
Costello for the way he performed his work ; that Prince told Costello that
he had no right to do this kind of work " (apparently referring to being a
group leader); and that Prince threatened to break Costello's arm and to
see that he was terminated if he persisted in that activity . It is not without
significance that not only did neither Costello nor Sanstrom appear as
witnesses , but Reilly's subsequently issued warning letters, later discussed,
on the ground that Prince had been directed to leave the
terminal at 4:45 a.m. Wsol, nevertheless, urged Reilly to
pay Prince's claim. Ultimately, Prince and his coworkers
were allowed the 15 minutes overtime, although without
Reilly's approval.
2. Subsequent events on October 1
Later in the evening, before the 10 p.m. lunch period,
Prince had a conversation with employee Rodney Peterson,
a regularly employed stacker on the outbound section of
the dock. Irked that he was required to take orders from a
casual employee by the name of Costello,? Peterson stated
that "he wasn't going to work for a casual after stacking for
a year and a half." Thereafter, Prince met Costello at the
timeclock where the employees were checking out before
taking their lunchbreak. Prince asked Costello whether he
was "in charge of the 5-man working group." Upon
receiving an affirmative response, Prince declared that
"there's been a complaint and . . . [that he was] going to
notify the union steward or call the hall about this."8
Costello made no reply.9 Reilly testified that he learned of
Prince's meeting with Costello from Ron Sanstrom.
About 11:30 p.m., Reilly rushed over to Prince, who was
unloading a trailer at the outbound location of the dock,
coming to a sudden stop on Prince's toes from which he
soon backed off. In the characteristic idiom of the day,io
Reilly rebuked Prince for presuming to run the dock and
"going around giving personnel instructions" and declared
that he was going to see that Prince was fired. Denying that
he knew what Reilly was referring to, Prince stated that, if it
was the Costello incident, he "definitely told . . . [Costello
that he] was going to notify the union steward or call the
hall," which he had a right to do. This evoked Reilly's
response, "The hell you do. Call your . . . hall . . . [your ]
union." Prince then told Reilly he was "not making any
sense" and asked Reilly to get out of his way so that he
could resume work. Reilly, however, refused to budge and,
when Prince attempted to go around him, he was
shouldered and pushed by Reilly. Also during the
conversation, which obviously was quite heated, Reilly
swung his hand, catching Prince on his chin and nose and
causing him to lose his right contact lens.ii As Reilly was
about to leave the area, he remarked that he wished Prince
were a foreman working under him so that he could "crack
the whip" on his bottom .i2 It also appears that Reilly put
make no mention of such alleged threats having been made by Prince.
io The particular accompanying profanity is omitted as it adds little to
the case . There is some undisputed testimony that Reilly was not entirely
sober on this occasion.
ii As a result of the altercation , Prince filed a criminal complaint of
assault and battery against Reilly. After a hearing at which both testified,
the complaint was dismissed.
12 The foregoing account of this episode reflects Prince 's convincing
testimony which , in part , was substantially corroborated by employees
William H. Smith and Ernest Worthy. It is not likely that Smith and
Worthy, who were still in the Respondent's employ at the time of the
hearing, would deliberately bear false testimony against their employer and
thus incur its displeasure . Georgia Rug Mill, 131 NLRB 1304, 1305, fn.2,
On the other hand, considering Reilly's demonstrated hostility and rage, I
am not persuaded by his testimony that, when he reminded Prince that he
was only a dockman without authority to supervise or direct his coworkers,
he simply suggested to Prince that, if he had a grievance concerning the
way the dock was operated , he should consult his union representative.
GATEWAY TRANSPORTATION CO. 49
Prince on notice that a warning letter would issue. This
entire episode probably lasted 4 minutes more or less.
Reilly thereupon proceeded to station No. 2, which was a
small dock office approximately 100 yards from Prince's
work area, to prepare a report of this incident with
instructions to the personnel office to issue a warning letter
to Prince . A few minutes later Prince arrived at station No.
213 where he saw Reilly , Jack Calla, the shift superintend-
ent, and Lloyd Hendricks , Prince 's immediate foreman, the
latter two individuals being subordinate to Reilly in the
supervisory hierarchy . Addressing Caha, Prince com-
plained that Reilly was harassing and keeping him from his
duties and that he could not continue working under those
conditions . Calla simply shrugged his shoulders . Reilly,
however , ordered Prince to return to his truck , declaring
that he would now receive two warning letters. Obviously
provoked , Prince replied that he did not care how many
letters Reilly sent him and that he would throw them in his
face With these parting words, Prince returned to his work
area.14 Because Reilly had so unnerved him, Prince decided
to leave without finishing his shift . Accordingly, Prince
gave Foreman Hendricks the manifests and bills of lading
which he was using and informed him that he was too upset
to continue working and was punching out before he hit
Reilly. At 11:45 p.m. Prince departed . It is undisputed that
the next day (October 2), about 4 hours before he was due
to report for work , Prince called in sick.
3. Warning letters
Several days later, Prince received by registered mail two
warning letters dated October 5. Although signed by
Michael P. Murphy, the Respondent's vice president, it was
concededly authorized by Assistant Terminal Manager
Reilly. The issuance of warning letters for violation of
company rules and other offenses has been a long-
established practice at the Respondent's terminal.15 It
appears that the last time a warning letter was issued to
Prince before those in question here was in 1966. The first
October 5 letter stated:
Thursday, October 1, 1970, you used profanity and
abusive language toward our company supervisor, Mr.
Thomas Reilly.
On the above date, at approximately 11:30 P.M., while
in a conversation with Mr. Reilly at your assigned work
area, you swore and used abusive language.
We are hereby warning you that further insubordina-
tion and use of abusive language toward our supervisors
will not be tolerated.
Nor do I credit Reilly's testimony that Prince repeatedly used profane and
abusive language to him Prince disputed this accusation and Smith and
Worthy denied hearing such intemperate language from Prince . Indeed,
although Reilly testified that Prince resumed his personal tirade against
him at station No. 2 in the presence of Superintendent Caha and Foreman
Hendricks , these individuals were not produced as witnesses to corroborate
Reilly
13 According to Prince, he went to that office to report Reilly's asserted
inebriation to a "reliable foreman "
14 The findings concerning the station No 2 episode are derived from
the testimony of Prince, whom I have found to be a trustworthy and
reliable witness I do not believe Reilly's version that on this occasion
Prince again directed abusive and profane epithets at him. The
Respondent 's unexplained failure to produce Superintendent Calia or
Foreman Hendricks , who were undeniably under its control, to corroborate
Should you in the future again be involved in such an
offense or other actions deviating from the established
rules and regulations of the Gateway Transportation
Company, Inc., it will be necessary to take appropriate
disciplinary action, without further notice, which may
result in your suspension or discharge. Therefore, please
consider this as a letter of warning and govern your
future actions thereby.
The other October 5 letter recited the following:
Thursday, 10/1/70, you failed to follow the instructions
of a company supervisor.
On the above date, at approximately 11:45 P.M., you
were instructed to return to your assigned trailer by Mr.
Thomas Reilly. In the presence of Mr. Lloyd Hendricks
and Mr. Jack Calla you used abusive language in
refusing to do as you were instructed.
We insist you follow the instructions issued to you by
your supervisors at the time they are given. We will not
tolerate any such further actions by you.
This letter concluded with the same disciplinary admoni-
tion as the first one. As indicated above, Prince, in fact, had
not addressed Reilly in abusive and profane language.
Although Reilly admittedly learned from Foreman
Hendricks that Prince had called in sick on October 2, he
authorized the issuance of a third warning letter dated
October 13 for this absence. Prince testified that Reilly's
harassment on October 1 had upset him too much to return
to work the next day. The warning letter read:
Friday, October 2, 1970, you absented yourself from
yourjob.
Absenteeism causes undue hardship on your fellow
employees and for the company in efficiently planning
its operations. You were hired to work a fulls-day week
and you are hereby warned that further absenteeism
will not be tolerated.
Here, too, the letter closed with the same disciplinary
admonition as that contained in the final paragraph of the
October 5 letters.
According to Reilly, it has been company policy for at
least 10 years to send an employee a warning letter as a
matter of course for an absence, regardless of duration or
whether or not the employee had called in sick. He further
testified that, under company rules, the letter will be
retracted if the employee produces a doctor's or medical
certificate and that, in Prince' s case, no such certificate was
submitted.
Prince, however, testified without contradiction that
during the past 5 years he was absent about eight times,
giving the Company on each such occasion the required
Reilly warrants the inference that , had they been called, their testimony
would not have been favorable to it. Kirby v. Tallmadge, 160 U.S 379, 383,
Texas Coca-Cola Bottling Company, 146 NLRB 420, 433, enfd. 365 F 2d
321 (C A 5)
15 Art. XXIV of the Union's collective-bargaining agreement with the
Respondent provides, in pertinent part, that
The Employer shall not discharge nor suspend any employee without
just cause . With respect to discharge or suspension, which includes
repeated tardiness or absence from duty, the Employer shall give at
least one warning notice of the complaint against such employee to the
employee in writing and a copy of same to the Local Union. (Warning
letters shall be effective only for a period of nine (9) months from the
date issued) except that no warning notice need be given to an
employee before he is discharged if the cause of such discharge is
dishonesty or drunkenness, when such charges are proven.. .
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advance notice, and that no warning letter for such absence
was ever issued to him. Indeed, the only evidence presented
by the Respondent of the issuance of warning letters to
Prince for absenteeism related to a 1959-60 period when he
received six letters of this nature, two of which also alluded
to his failure to notify the Company. Employee Smith also
gave uncontroverted testimony that in the 5 or 6 years he
has been in the Respondent's employ, he was absent some
20 to 30 times, as a result of which he had received only two
or three warning letters. On several occasions, he further
testified, warning letters were not issued even though he
had failed to call in sick. In disagreement with Reilly, both
Prince and Smith testified that company rules, which they
had seen posted on a bulletin board, required a medical
certificate only for absences of 3 or more days. In addition,
Smith testified that in April 1970, when he sought to return
to work after a less than 3-day absence, Reilly refused to
permit him to do so unless he first submitted a doctor's
certificate; that he (Smith) insisted a certificate was not
required; and that, after complaining to Union Steward
Klein, Smith was paid for the day he lost as a result of
Reilly's action. This testimony was not disputed. It thus
appears that, whatever might be Reilly's understanding of
the Company's rules regarding the issuance of warning
letters for absences, they have not been rigidly or uniformly
enforced.
Although fully familiar with the contractual grievance
procedure 16 and the practices thereunder, which he had
utilized on other occasions with the assistance of the Union
to complain about warning letters issued to him, Prince did
not file a grievance regarding the October 5 and 13 letters.
Instead, he filed an unfair labor practice charge on which
the complaint herein is based, alleging that the letters were
issued because of his protected and concerted activities.
According to Prince, before doing so, he had asked Union
Steward Klein to have Business Agent Wsol come to the
terminal to discuss with him the filing of a grievance but
that Wsol was evidently too preoccupied with other matters
to see him. However, Prince made no effort to visit the
Union's offices.
B. Concluding Findings
In substance, it is the General Counsel's position that
Prince engaged in protected, concerted activity in protest-
ing the loss of 15 minutes overtime on September 25-26 and
the Respondent's designation of a casual employee,
Costello, as a group leadman, and in invoking the Union's
assistance to press these complaints. The General Counsel
16 Art. XV11, sec I of the agreement , entitled "Grievance Machinery,"
provides, among other things
The Operators and the Union shall together create a permanent
Committee The Joint Committee shall consist of an equal number
representing Employers and Union but no less than three from each
group .
It shall be the function of the Committee above referred to, to settle
disputes which cannot be settled between Employer and the Local
Union
The Union and the Employer agree that there shall be no strike,
lockout, tie-up, or legal proceedings without first using all possible
means of a settlement , as provided for in this Agreement, of any
controversy which might arise Disputes shall first be taken up
between the Employer and the Local Union Failing adjustment by
further argues that, as Assistant Terminal Manager Reilly's
threat to discipline Prince, his assault upon Pnnce, and the
subsequent issuance of three warning letters were motivat-
ed by Prince's above activity, the Respondent violated
Section 8(a)(1) of the Act. The Respondent, on the other
hand, contends that the General Counsel failed to prove
that Pnnce was restrained or coerced for engaging in
protected concerted activity urging, in defense, that Prince
was verbally reprimanded because he improperly attempt-
ed to supervise other employees and that the three warning
letters were issued for the very reasons therein stated. In
any event, the Respondent argues, the Board should decline
to exercise junsdiction and relegate Prince to the contractu-
al grievance procedure to have the warning letters
rescinded. Answering the latter contention, the General
Counsel, denies that, under the special circumstances of
this case and in view of the fact that the matter has already
been litigated, the policies of the Act would be effectuated
were the Board to defer to the grievance procedure.
At the outset, I find insufficient evidence in the record
that Prince's effort to regain the 15 minutes overtime pay
through the Union's intercession was involved in, or
contributed to, the Reilly-Prince encounter on October 1
and I therefore reject the General Counsel's contention that
the Respondent violated the Act in that respect. However, I
do find that this incident was precipitated by Prince's
objection to the designation of Costello, a casual employee,
as a leadman of a crew which included regular employees.
Undeniably, Prince expressed his objection to Costello,
informing him of his intention to report the situation to the
Union. As shown above, there is absolutely no evidentiary
basis for the Respondent's assertion in its brief that Prince
attempted to supervise Costello or otherwise interfered with
a management order given by Sanstrom, a foreman trainee,
to Costello.'? It is also perfectly clear that Prince's interest
in the Costello designation displeased Reilly enough to
provoke him to rush over to Prince's work area where he
rebuked him for intruding into what Reilly obviously
regarded as a management preserve and threatened him
with discharge and warning letters. When Pnnce reiterated
his previously expressed intention of presenting his
complaint to the Union, Reilly reacted with the remark,
"The hell you do," and, as if to challenge Prince, added
"Call your ... hall . . . [your I union."
It cannot seriously be disputed that the appointment of a
group leadman to direct employees relates to a working
condition and is a legitimate employee concern for
concerted action which the Act sanctions.'s Similarly
safeguarded is the employees' right to enlist their bargain-
these parties the following procedure shall then apply-
A Where a Joint Committee by a majority vote settles a dispute no
appeal may be taken. Such a decision will be final and binding on
both parties
D Failing to arrive at a settlement by this procedure same shall be
submitted within thirty days to an arbitrator . The arbitrator shall be
appointed by the Federal Mediation and Conciliation Service. The
decision of the arbitrator shall be final and binding upon the parties.
17 Cf Morrison -Knudsen Company , Inc. v N L R B, 358 F 2d 411, 415
(C A 9), enforcing 149 NLRB 1577.
18 Cf Sutherland Lumber Company , Inc, 176 NLRB No 143, In 1;
Guernsey -Muskingum Electric Cooperative, Inc, 124 NLRB 618, fn . 1, enfd
285 F 2d 8, 12-13 (C A 6); Phoenix Mutual Life Insurance Company, 73
GATEWAY TRANSPORTATION CO. 51
ing agent 's assistance in pressing these complaints or
grievances before management . 19 Moreover , under settled
law,20 the protection the Act affords such concerted activity
does not depend upon the meritoriousness , wisdom or
justification of the particular complaint or grievance.
In the present case , Prince made common cause over a
working condition at least with Rodney Peterson,21 a
regular employee who voiced his resentment to Prince at
being subjected to the direction of Costello. Certainly, it is
not unusual for employees to help each other and make
common cause so that "each one of them assures himself, in
case his turn ever comes, of the support of the one whom
they are all then helping ." 22 Thus, in a very real sense,
Prince exercised his right to engage in concerted activity for
mutual aid and protection when he undertook to protest
Costello's designation as group leader by enlisting the
Union 's aid to press the grievance , even though he himself
was not a member of Costello's crew.23
Accordingly , I find that Reilly 's threat to issue a warning
letter and to discharge Prince in reprisal for his protected,
concerted activity constituted an infringement of employee
statutory rights prohibited by Section 8(a)(1) of the Act.24
However , Reilly's pushing , jostling, or other physical
contact with Prince when the latter attempted to resume
working, I find in disagreement with the General Counsel,
was not calculated to intimidate Prince to desist from his
protected activity and therefore was not violative of the
Act.
Turning to the warning letters, I find that their issuance
was motivated by Reilly's extreme displeasure with Prince's
protected involvement in the Costello matter and his
expressed intention to resort to the Union to press his
complaint , and not , as the Respondent maintains, by the
reasons asserted in these letters . As shown above , the first
October 1 letter was issued , as Reilly had threatened he
would do, when he rebuked Prince for his unwarranted
intrusion into management 's preserve . Moreover, Prince
was actually not guilty of the abusive conduct or
insubordination stated in that letter unless the reference to
insubordination related to the activity in which he was
statutorily privileged to engage.
As for the second letter , it, in my opinion , was issued
under circumstances which were but an extension of
Reilly's vituperative treatment of Prince at the latter's work
area a few minutes earlier. Incensed by Reilly's conduct, all
Prince did was to go to the station No. 2 dock office to
complain to management about Reilly 's harassment and
interference with his work . Reilly's superior was not then on
duty, and Prince voiced his complaint to Superintendent
Calla , whom he regarded as a responsible official , although
below Reilly in the supervisory hierarchy I am not
persuaded , as the Respondent suggests , that Prince
NLRB 1463, 1464-65, enfd 167 F 2d 983 , 987-988 (C A 7), cert denied
335 U S 845
i9 Interboro Contractors, Inc, 157 NLRB 1295, 1298- 1302, enfd. 388
F 2d 495 (C A 2), McNally Bros, Inc, 167 NLRB 819, 826, enfd 417 F 2d
1029, 1030 (C A 2), Colony Furniture Company, 168 NLRB 725, Dorwood
Rental Company, 178 NLRB No 104
20 Interboro, supra, fn 7, 388 F 2d at 500 ; cf N L R B v MacKay Radio
& Telegraph Co, 304 U S 333 , 334 ("the wisdom or unwisdom of the
[employees), their justification or lack of it" does not affect the protected
character of their conduct)
21 As previously indicated, Prince was not alone in complaining about
deliberately went to the dock office to revive the
confrontation originally initiated by Reilly. Nor do I find
entirely accurate the reason for the second disciplinary
warning set forth in that letter that Prince refused to follow
instructions to return to his truck. Prince did return to his
truck, although he decided to leave the terminal because he
was too upset to finish the day. In these circumstances, I
find that the second warning letter , no less than the first
one, was issued in reprisal for Prince 's protected activity.
Such statutory protection , I further find , was not forfeited
simply because , in response to Reilly's declaration that
Prince would receive a second warning letter, Prince
impulsively retorted that he did not care how many letters
Reilly sent him and that he would throw them in his face.25
Lastly, I find that Prince's absence on October 2 was also
a pretext for the third warning letter , which, I find would
not have been issued were it not for his protected activity.
Thus, apparently still emotionally distressed by his
encounter with Reilly the day before , Prince called in sick
on October 2. From my discussion above, it is quite clear
that the Respondent 's rules, under which Reilly purported-
ly acted , have not been so inflexible or consistently applied
as to require the issuance of a warning letter for Prince's
absence. Significantly , for the past 5 years, at least, Prince
was absent about eight times, without being given any
warning letters . On those occasions , he observed the
Company's requirement and notified the terminal of his
contemplated absence , as he did here . Employee Smith had
a comparable experience . In the 5 or 6 years he has been in
the Respondent 's employ he was absent 20 to 30 times, as a
result of which he received only two or three warning
letters. He also testified that on several occasions he was
not given a warning letter , despite the fact that he had failed
to notify the Respondent in advance . In view of the
foregoing , including Reilly's hostility to Prince 's concerted
activity, the sequence of events , and the facts and
circumstances surrounding the issuance of the first two
letters, I am convinced that it was Prince 's concerted
activity, rather than his October 2 absence, that accounted
for the issuance of the third warning letter.
In sum, I conclude that the three warning letters which,
by their own terms , render Prince vulnerable to discharge,
were the instruments utilized by the Respondent to punish
Prince for his protected, concerted activity, and that
therefore their issuance violated Section 8(a)(1) of the Act.
Even assuming that the reasons stated in the warning letters
to some extent contributed to the Respondent's decision to
issue them, I find that the paramount moving cause for
their issuance was its displeasure with Prince's involvement
in the Costello protest.26
Whether or not an unfair labor practice was committed
by the issuance of the three warning letters to Prince, the
the Costello situation but several other employees had also reported
Costello to Union Steward Klein. Cf Interboro Contractors, 157 NLRB at
1298, 388 F 2d at 499-500
22 N L R B v Peter Caller Kohler Swiss Chocolates Co, Inc, 130 F 2d
503, 505 (C A 2)
23 Morrison -Knudsen, supra , 358 F .2d at 413
24 Dorwood Rental Company, supra, Colony Furniture Company, supra,
New York Trap Rock Corporation, 148 NLRB 374, 376.
25 Cf Thor Power Tool Company, 148 NLRB 1379 , 1380-81, enfd. 351
F 2d 584, 586-587 (C A 7), New York Trap Rock Corporation, supra
26 Cf. N L R.B v . Symons Manufacturing Co., 328 F 2d 835, 837 (C A.
(Continued)
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent urges, nevertheless, that statutory policies
dictate that the Board decline to exercise jurisdiction,
relegate Prince to the contractual grievance procedure
where the justification for the warning letters could be
determined, and dismiss the complaint. The General
Counsel, however, sees no justification for the Board to
abandon its statutory duty to adjudicate the unfair labor
practices litigated in this case.
There is no question that the Board is not ousted of
jurisdiction by the existence of a grievance-arbitration
procedure in a collective-bargaining agreement,27 although,
in its discretion, it has deferred in the appropriate case to
such a procedure as a recognized "instrument of national
labor policy for composing contractual differences."28 I do
not believe that statutory policy would be effectuated in the
present case were the Board to withhold its jurisdiction.
Here, the unfair labor practice charge is based on an
alleged violation of employee rights guaranteed by the Act
to engage in concerted activity for mutual aid and
protection and not on an asserted breach of contract which
might require the interpretation of ambiguous clauses.29
Indeed, the alleged violations involve retaliatory threats
and warning letters to Prince for seeking the Union's
assistance in pressing his grievance which certainly entailed
the use of the grievance procedure the Respondent now
insists should be pursued to resolve the underlying
controversy.30 In the face of such conduct, it can hardly be
said that it would be consonant with statutory policy for the
Board to refuse to assert its power to prevent the
commission of unfair labor practices and thereby vindicate
employee rights under the Act. Further fortifying the view
that the Board should retain jurisdiction is the fact that
Prince had not elected to file a grievance; that the issues
herein have already been litigated and are ripe for decision
without further delay; and that no esoteric problems of
contract interpretation are here presented which require a
special competence not possessed by the Board.
All things being carefully considered, I find that the
issues in this case can best be decided within the framework
of the Act, without deferral to the contractual grievance
procedure.31 Accordingly, the Respondent's request to
dismiss the complaint is denied.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, I recommend that
the Respondent cease and desist from engaging in the
unfair labor practices found and in like and related conduct
and take certain affirmative action designed to effectuate
the policies of the Act.
7), enfg 141 NLRB 558, N L R B v. Jamestown Sterling Corp, 211 F 2d
725, 726 (C A 2), enfg 106 NLRB 466.
27 Sec 10(a) of the Act provides that the Board's power "to prevent any
person from engaging in any unfair labor practice shall not be affected
by any other means of adjustment or prevention that has been or may be
established by agreement, law or otherwise
28 International Harvester Company, 138 NLRB 923, 926, affd sub nom
Ramsey v N L R B, 327 F 2d 784 (C A 7), cert denied 377 U S 1003,
Spielberg Manufacturing Company, 112 NLRB 1080
29 Cf. N L R B v C & C Plywood Corp, 385 U S 421, Jos Schhtz
Brewing Company, 175 NLRB No 23, C & S Industries, Inc, 158 NLRB
454, 459-460
30 It is noted that the Union neither filed the unfair labor practice
To remedy the disciplinary action taken against Floyd
Prince, it is recommended that the Respondent withdraw
and rescind the warning letters dated October 5 and 13,
1970, previously served on Prince; that it remove the copies
of these warning letters from his personnel file; and that it
expunge any notations made in company personnel records
relating to these warnings.32 The posting of an appropriate
notice is also recommended.
Upon the basis of the foregoing findings of facts and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening Floyd Prince with discharge and the
issuance of disciplinary warning letters and by actually
issuing such letters in reprisal for protesting a condition of
employment and seeking assistance of the Union to press
his grievance, the Respondent has interfered with, re-
strained, and coerced employees in the exercise of their
statutory right to engage in concerted and union activities
for mutual aid and protection, within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not violated Section 8(a)(1) of
the Act in other respects alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following
recommended: 33
ORDER
The Respondent, Gateway Transportation Co., Inc.,
Chicago Ridge, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening to discipline, suspend, or discharge
employees or issuing warning letters in reprisal for
protesting conditions of employment or for seeking
assistance of their collective-bargaining representative to
press such grievances and complaints.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to engage in concerted or union activities for mutual
aid and protection as guaranteed in Section 7 of the Act.
charge herein nor appeared at the hearing to support Prince's case
31 Consolidated Freightways Corporation of Delaware, 181 NLRB No
137, TXD, fn. 2; United Aircraft Corporation (Pratt & Whitney Division), 180
NLRB No 49, In. 2, McLean Trucking Company, 175 NLRB No. 66;
Producers Grain Corporation, 169 NLRB No. 68, In. 2 The cases cited by
the Respondent in support of its position do not require a contrary result
than that reached in this decision
32 Quality Production Company, 162 NLRB 1459, 1460
33 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, and recommended Order herein shall, as provided in
Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
GATEWAY TRANSPORTATION CO.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Withdraw and rescind the warning letters dated
October 5 and 13, 1970, previously issued to Floyd Prince;
remove copies of these letters from Prince's personnel file
and records; and expunge any notations made in company
personnel records and files, which could be used as a basis
for disciplinary action against Prince.
(b) Post at its terminal in Chicago Ridge, Illinois, copies
of the attached notice marked "Appendix."34 Copies of
said notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in writing
within 20 days from the receipt of this Decision, what steps
the Respondent has taken to comply herewith.35
IT IS FURTHER ORDERED that the complaint be, and it
hereby is dismissed insofar as it alleges other violations of
Section 8(a)(1) of the Act.
34 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
35 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 13, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to
comply herewith "
APPENDIX
53
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discipline, suspend, or
discharge employees or issue warning letters in reprisal
for protesting conditions of employment or for seeking
assistance of their collective-bargaining representative
to press their grievances and complaints.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their right to engage in concerted or union activities for
mutual aid and protection as guaranteed in Section 7 of
the National Labor Relations Act.
WE WILL withdraw and rescind the warning letters
dated October 5 and 13, 1970, previously issued to
Floyd Prince. We will also remove the copies of these
letters from Prince 's personnel file and records, and
expunge any notations made in any other personnel
records and files, which could be used as a basis for
disciplinary action against him.
GATEWAY TRANSPORTATION
CO., INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 881
U.S. Courthouse and Federal Office Building, 219 S
Dearborn Street , Chicago, Illinois 60604 , Telephone
312-353-7572.