L. A. Tucker Truck Lines, Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1973

201 N.L.R.B. 897 (N.L.R.B. 1973)

L. A. TUCKER TRUCK LINES, INC.
L. A. Tucker Truck Lines, Inc. and Albert Rudolph.
Case 14-CA-6954
February 15, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 16, 1972, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon
charges filed by Albert Rudolph, an individual, the
General Counsel issued a complaint on August 25, 1972,
alleging a violation of Section 8(a)(1) and (3) of the Act.
Respondent denies the commission of unfair labor prac-
tices , and a hearing was held on September 25, 1972.
Upon the entire record of the case , including my
observation of the demeanor of witnesses and upon
consideration of briefs , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation engaged in
interstate freight trucking services , with a place of business
at East Grant terminal in St . Louis, Missouri . Respondent's
annual revenue from interstate services exceeds $50,000. I
find that Respondent is engaged in commerce within
Section 2(6) and (7) of the Act.
I All dates herein are in 1972, unless otherwise stated
II. THE LABOR ORGANIZATION INVOLVED
897
Highway and City Freight Drivers, Dockman and
Helpers Local Union No. 600, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor
organization within Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
The General Counsel alleges that Respondent refused
further employment to Albert Rudolph on or about July
10, 1972,1 purportedly because Rudolph caused the Union
to notify Respondent that nonunit individuals had pur-
portedly performed unit work and because Rudolph filed a
so-called witness affidavit in behalf of another employee's
grievance to such effect . Respondent denies that it
discharged or otherwise unlawfully discriminated against
Rudolph.
Respondent and the Union have had a collective-
bargaining relationship for more than 25 years. Their
current contract differentiates between "casual" and
"seniority" employees , the latter being in effect the status
employees. Seniority status is achieved only by working
more than 30 days in a 90-day period. It is more
economical for Respondent to limit the number of
"seniority" employees , and the record shows much
dockman unemployment in the St . Louis area at material
times herein . A call-in procedure is the hiring practice
respecting casuals, and an interested casual calls in each
morning to inquire concerning work availability that day.
Rudolph is a member of the Union and is on the
"seniority" roster of another employer . Through the
intercession of Union Business Agent Robert Ramshaw,
Rudolph obtained casual employment with Respondent on
June 14. He worked again on June 22 , 23, 26, 27, and 28.
While working the day shift on June 28 , Rudolph informed
Shop Steward Paul Sampson that he , Rudolph, had
observed midnight Foreman Marvin Rhodes and the
midnight spotter breaking down and loading freight on
June 26 and 27; these are bargaining unit functions and,
under the terms of the collective-bargaining agreement, are
purportedly not to be performed by nonunit personnel.
Sampson brought the matter to the attention of Union Vice
President Clyde Goad on or about June 29 , and that same
day Goad and Sampson advised Terminal Manager
Kenneth Inman that a grievance would be filed in such
connection . When Inman inquired who had "turned them
[the foreman and spotter] in," Sampson replied that Inman
would find out when the grievance was filed.
Rudolph called Dock Foreman John McGowan on June
30 to inquire about employment ; according to Rudolph's
credible testimony, McGowan replied that Rudolph
wouldn't work that day or the following week either.
(Rudolph had been led to believe that he would work that
next week). Rudolph thereupon went to the terminal and
told Shop Steward Sampson that he had been fired.
Sampson asked Foreman McGowan for an explanation,
and McGowan told Sampson that Terminal Manager
Inman had directed that Rudolph not work any more.
201 NLRB No. 131
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sampson then took up the matter with Inman , and Inman
replied that he had found a "better" man. Rudolph
pursued the matter with Union Vice President Goad. Goad
telephoned Inman and, following this call, Goad told
Rudolph that there had been a misunderstanding and that
he was not fired. Rudolph called in and obtained
employment further on July 3, 5, 6, and 7. On July 7,
McGowan told Rudolph to call in again on July 10.
Rudolph accordingly called McGowan by 7:30 a.m. on
July 10, to be advised by McGowan to call back later
because McGowan was still uncertain about personnel
needs that day. Unable to reach McGowan by a later call
about 8 that same morning, Rudolph went to the terminal
where McGowan informed Rudolph, according to Ru-
dolph's credible version of the incident, that Respondent
had enough extra help to last the rest of the summer and
that McGowan would call Rudolph should he need
Rudolph.
Shop Steward Sampson had previously prepared a
grievance form on the basis of a witness affidavit signed by
Rudolph on or about June 29. Sometime during the
morning of July 10, then Acting Steward Carroll Batton
filed and submitted Sampson's grievance to Terminal
Manager Inman respecting the foreman and the spotter
performing bargaining unit work. The grievance identified
Rudolph as the supporting witness . Inman commented that
the grievance "was not worth the paper it was written on."
(According to Sampson, this was Inman 's usual remark
when handed a grievance.) The record does not clarify the
timing of Inman's receipt of the grievance vis-a -vis his
aforementioned conversation with Rudolph at the terminal
that same day.
On July 12, Rudolph and Batton asked Inman why
Rudolph was not working. Inman replied that the dock
foremen didn 't want to use him. Batton then took up the
matter with McGowan whereupon McGowan explained
that he didn't want to work one man continually, but
wanted to spread the work among all extra men "periodi-
cally."
Rudolph has not called in again to inquire concerning
the availability of work, nor has he sought the Union's
assistance in such regard , and Respondent has not
contacted Rudolph. Respondent has meanwhile employed
other casuals , taking on at least one individual at Goad's
request since July 7. Rudolph's accumulated time with
Respondent was 10 days. Inman testified that Respondent
sometimes works casuals up to 23 days; according to
McGowan's "rough guess," the average period is 10 days.
Contentions, Further Findings, and Conclusions
Respondent contends, in effect, that Rudolph's failure to
obtain further casual employment was, at least in part, due
to his own failure to call in since July 12. Asserting that,
had Rudolph called in, he would have been given the same
consideration accorded any other individual seeking casual
work, Respondent also claims that it questioned Rudolph's
competency as an employee. Respondent thus adduced
testimony that Rudolph "did an awful lot of talking," and
Foremen Gregory and McGowan testified to having called
the matter to Rudolph's attention. Rudolph credibly
denied this testimony, and the record shows that Respon-
dent had never complained about Rudolph to union shop
stewards, as Respondent has done respecting unsatisfacto-
ry performance by other casuals . I am unable to find
credible evidentiary support that Rudolph 's performance
was below average and contributed to his nonemployment
since July 10.
Respondent further adverts to a substantial drop in its
freight tonnage at the time and to the above -mentioned
unemployment situation in the local trucking industry.
The General Counsel, on the other hand , refers to
shifting reasons and discrepancies in Respondent 's account
of events and he accordingly asserts that "Although the
record does not directly establish that Batton submitted the
grievance to Inman prior to when McGowan and Rudolph
had their second conversation on July 10, it is submitted
that the chronology of events is the only plausible manner
for explaining the apparent change in the Respondent's
attitude concerning the employment status of Albert
Rudolph" (G.C. br., pp. 5-6).
There are suspicious circumstances in this case , yet I am
unable to conclude that the record preponderantly estab-
lishes that Respondent was unlawfully motivated toward
Rudolph. Even assuming that Rudolph's second conversa-
tion with McGowan occurred after the grievance was
submitted to Inman that same day and that Respondent
thus had knowledge of Rudolph 's witness affidavit at the
time of that second conversation , I have a substantial
question concerning Respondent 's knowledge in that
connection on June 30. This date is critical in my opinion
for it was then that Respondent first attempted to cut off
Rudolph's employment , temporarily at least ; and Rudolph
was enabled to continue but only through the intervention
of Union Official Goad . Goad and Sampson had called the
substance of the grievance to Inman 's attention the day
before (June 29), but Sampson-in Goad 's presence-de-
clined to identify Rudolph 's role in the matter ; and, so far
as tiA record discloses , there is no evidence that Respon-
den d such information on June 30.
Bearing on the material factor of union animus is the
long, more than 25 years , bargaining relationship between
Respondent and the Union. Mitchell Campbell is general
manager of Motor Carriers Council of St. Louis, with
responsibility for administering Respondent's labor con-
tracts with the Teamsters . According to Campbell's
uncontroverted testimony covering the last 19 years,
Respondent has never refused to process a grievance or, to
his knowledge , ever discriminated against an employee for
participating in such filing . Shop Steward Sampson
substantially corroborates Mitchell 's testimony , and the
record further shows that another employee has more
recently filed a grievance similar to the Sampson-Rudolph
grievance and that such other employee is still on the
payroll.
Unlawful motive to sustain a violation of the sort
involved here does not require a showing that Respondent
was opposed to unions as such . Rather, assuming all other
factors are present , the violation may be founded on
discriminatory action taken out of pique , for example,
against an employee for filing or supporting a particular
grievance . Respondent 's long-standing relationship with
the Union does not itself preclude the possibility that
L. A. TUCKER TRUCK LINES, INC. 899
Respondent 's supervisors might have sought to get rid of
Rudolph for "turning them in ." While not controlling,
therefore, the long contractual relationship is nevertheless
entitled to substantial probative value in assessing the
relevant motive factor in light of all other attendant
circumstances . Cf. Hadco-Tiffin, A Division of A-T-O, Inc.,
198 NLRB No. 102.
Upon consideration of all of the foregoing, I conclude
that the record does not preponderantly establish that
Respondent has unlawfully discriminated against Ru-
dolph?
2. The Union is a labor organization within Section
2(5) of the Act.
3. Respondent has not violated the Act in the respects
alleged in the complaint.
Upon the foregoing findings , conclusions , and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:3
ORDER
It is hereby ordered that the complaint herein be
dismissed.
CONCLUSIONS. OF LAW
1. Respondent is an employer engaged in commerce
within Section 2(6) and (7) of the Act.
2 Citing Collyer Insulated Wire, 192 NLRB No . 150, Respondent asserts not predicate my dismissal action on the Collyer consideration.
that Rudolph should have invoked applicable contract procedures rather 3 In the event no exceptions are filed as provided by Sec . 102.46 of the
than filing the charge in this case . Respondent made no claim in that regard Rules and Regulations of the National Labor Relations Board , the findings,
at the hearing , nor does it indicate a willingness to take up any such conclusions , and recommended Order herein shall , as provided in Sec
grievance at this time . Lacking a clear understanding of Respondent's 102.48 of the Rules and Regulations , be adopted by the Board and become
position , including a question concerning the applicability of the contract its findings , conclusions , and Order , and all objections thereto shall be
grievance procedures to casual employees , I do not reach and therefore do deemed waived for all purposes.