Lafferty Trucking Co.

National Labor Relations Board - Board Decisions

Nov 1, 1974

214 N.L.R.B. 582 (N.L.R.B. 1974)

582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lafferty Trucking Co. and Perry L. Lukens. Case 6-
CA-7191
November 1, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 27, 1974, Administrative Law Judge Phil
Saunders issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, with the following
amplification.
In its exceptions and brief to the Board, Respon-
dent contended for the first time that Lukens was not
engaged in protected concerted activity when he
threatened to file a grievance against Head Mechanic
Gates, because the threat was directed at filing an
intraunion grievance against a fellow union member
rather than a grievance against Respondent, and
therefore Respondent's discharge of Lukens for mak-
ing this threat was not violative of Section 8(a)(1)
and (3) of the Act. We do not agree that this was the
understanding of the threat by either Lukens or Su-
pervisor Singer.
When Gates rebuked Lukens in profane language
for using his lights during the daytime, the rebuke
was job connected. When, in his conversation with
Singer, Lukens said he would file a grievance against
Gates for this conduct, he did not know that Gates
was a fellow union member. So far as Singer is con-
cerned, his reaction to the threat belies Respondent's
contention that Singer thought Lukens was only
threatening to file a grievance against Gates as a
union member. Thus, Singer became upset on hear-
ing of Lukens' intention and said: "You can't go to
the Union. . . . You can't go to the Union; you are
a no-body here. . . . You're dust a casual employee
.. . . You're nothing." If Singer understood that
Lukens was only threatening an intraunion griev-
ance , why was it any business of Singer as a supervi-
sor for Respondent? And why was Lukens' status as
a casual employee significant? Singer's perturbation
makes sense only in the context that he was aware
that the Union had previously filed a number of
grievances against Respondent because of the con-
duct of Gates toward unit employees and he consid-
ered Lukens' threat to be in the same category. He
tried to dissuade Lukens with the argument that as a
casual employee Lukens had no contract rights.' And
when Lukens refused to be dissuaded, Singer fired
him.
Accordingly, we find that Respondent discharged
employee Lukens because Respondent believed that
he was going to file a grievance against Respondent
because of Head Mechanic Gates' conduct toward
Lukens and that Respondent thereby violated Sec-
tion 8(a)(1) and (3) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Lafferty Trucking Co., Al-
toona, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
i Although in its brief to the Board Respondent argues that Lukens had
no right to file a grievance under the provisions of the existing collective-
bargaining contract between Respondent and the Union , in its brief to the
Administrative Law Judge Respondent contended that the dispute should
be disposed of under the contract grievance procedure
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Administrative Judge: Pursuant to a
charge filed by Perry L. Lukens on January 7, 1974, a com-
plaint was issued on February 22, 1974, against Lafferty
Trucking Co., herein the Respondent or Company, alleging
violations of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended. Respondent filed an answer to
the complaint denying it had engaged in the alleged unfair
labor practices. A hearing in this proceeding was held be-
fore me, and both the General Counsel and Respondent
filed briefs.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:'
1 All credibility resolutions made herein based on a composite evaluation
of the demeanor of the witnesses and the probabilities of the evidence as a
whole
214 NLRB No. 109
LAFFERTY TRUCKING CO
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent, a Pennsylvania corporation with its
principal offices and terminal locate in Altoona, Pennsyl-
vania, is engaged in business as an interstate carrier by
motor truck, and dunng the 12-month period immediately
preceding the issuance of this complaint, received in excess
of $50,000 for services rendered in connection with the
transportation of goods and materials across State lines to
and from the Commonwealth of Pennsylvania.
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
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
110, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that the Respondent dis-
charged Perry Lukens on November 26, 1973,2 because of
his union activities, because he engaged in concerted activ-
ities with other employees for the purpose of collective bar-
gaining and other mutual aid and protection, and in order
to discourage membership in the Union.
The Respondent operates a trucking business which
started out as a family venture, but has now developed into
quite a sizeable enterprise. The operations are directed by
G. Digby Lafferty, Road Supervisor William Singer, Head
Mechanic Glenn Gates, and Office Manager Ronald Gra-
ble.
The Respondent has a long-standing bargaining rela-
tionship with the Union, and the current contract between
the parties contains a union-security clause, and sets forth
certain specific guaranteed jobs. The contract also estab-
lishes a "casual" period of 60 days for new employees, and
at the end of the 60-day period the casual employees shall
be notified by the Company as to his standing in regard to
future employment.3
Perry Lukens was hired as a truckdriver in October, and
placed on the Respondent's "casual list" and thereafter
was called upon and hauled several loads for the Compa-
ny.' On the afternoon of November 24, Lukens used the
headlights on his truck while driving because of low visibil-
ity and rain in the area, and still had the lights on when he
returned to the Respondent's terminal. However, when he
stopped his truck on the parking lot, he was immediately
confronted and accosted in profane language by Head Me-
chanic Glenn Gates for using his lights during the daytime
2
All dates are 1973 unless stated otherwise
3 See G C Exh 2-article IV
° At the end of the 60-day period the Respondent's general practice is to
move "casual list" employees to its "regular extra" and "regular" employee
list, varying on particular circumstances and the individual wishes of the
driver and management
583
and wasting the batteries. Lukens, who had never before
met Gates, asked him who he thought he was talking to,
and after Gates had identified himself, Lukens suggested
that they discuss the matter with Road Supervisor Singer
who had initially given Luken his road test and who had
hired him, but Gates told Lukens that Singer was not at the
terminal at the present time, and Gates then immediately
left the parking lot.
Lukens continued to work and made another trip for the
Respondent on November 26, but after returning from this
trip Supervisor William Singer asked Lukens what had
happened between him and Gates. Lukens told Singer he
had been using his lights because of fog and rain, and when
he returned to the terminal Gates had told him to turn out
his-lights. Lukens then asked Singer:
"What would you do if a stranger came up to you and
told you to turn out your lights?" Mr. Singer
says "Well, I would turn out the lights." So I told Mr.
Singer, I said, I am going to the Union and turn in a
grievance against Mr. Gates." He says "You can't go
to the Union?" I said "What do you mean I can't go to
the Union?" He said "You can't go to the Union; you
are a no-body here." He said "You're just a casual
employee." He says "You're nothing."
And I told him, I said "Well, Singer I've belonged to
the Union for almost four years. What do I pay Union
dues for?" I said, "I paid nine dollars every month." I
said "What good does it do me to pay Union dues?"
He says, "In that case, I won't jeopardize Mr. Gates'
years of service and position here for a new man like
you." He says "You're through."
As he had promised, Lukens promptly called the Union
Hall and on November 26 filed a grievance against Gates
for defamation of character and discrimination against an-
other union member, and apparently at the same time also
filed a grievance or complaint over his discharge. Union
Steward Charles Proctor testified that the Union did not
want to process the grievances because of the possible
change in Union officers halfway through the procedures,
and further stated that the grievances are still pending.
The Company argues that any new person or drivers
placed on the "casual list" is free to leave any time he
wants to, does not need to accept a job when it is offered to
him and maintains that the Company has no obligation of
any kind in respect to casual employees.5 Respondent's
President Digby Lafferty testified that all applicants are
placed on the "casual list" with the understanding that if
needed, due to "high peaks" at various times in the truck-
' At the time Lukens was put on the "casual list" he signed an agreement
which stated as follows
1, /s/ Perry L Lukens, hereby recognize that I am applying for work on
the Casual List of the Lafferty Trucking Company, Inc. under the
terms of their existing agreement with the Teamster's Local
I further understand that if accepted as a casual employee, the com-
pany has no obligation to me other than hourly wages paid for actual
work performed
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing business, he then would be called to haul loads if avail-
able. Digby stated that the list will vary from month to
month and that many on the list are also employed in other
work. He further testified that supervisors watch the driv-
ers on the casual list because this is the "best place" to
obtain drivers for their "extra" and "regular lists." He said
that supervisors will also exercise their right of refusing to
call a driver from the casual list or delete his name from
the list, if management does not like the way in which the
driver performed his duties. In its brief the Respondent
also suggests that this matter should be disposed of by the
grievance procedure under the current contract between
the parties, and points to the two grievances filed by Luk-
ens on November 26, as aforestated.
Final Conclusions
I find the real reason and motivating cause for Lukens'
termination resulted because of his threat to contact the
Union and file a grievance against Head Mechanic Gates,
and, of course, the filing of grievances is among the em-
ployee activities protected by Section 7 of the Act.
The Respondent contends that the cases cited by the
General Counsel in his closing statement have no applica-
bility because they deal with probationary employees, and
maintains that Lukens was not a probationary employee
nor was any other person on the casual list a probationary
employee. The Respondent further argues that people on
the casual list are merely individuals upon which the Com-
pany can rely on when extra help on a temporary basis if
needed.
Probationary employees usually serve a short duration
of time with few or no fringe benefits, and at the conclu-
sion of the "testing period" management then evaluates
their performances for promotions to regular classifica-
tions, or dismissals if their work is unsatisfactory. I submit
that Respondent's employees on their casual list, regardless
of the name attached, are subject to the same general con-
ditions as probationary employees. The current contract
between the Company and the Union provides that at the
end of 60 days a casual employee shall be notified "as to
his standing" in regard to "future employment," and if ac-
ceptable and qualified, shall be removed from the casual
list and placed on an extra list. President Lafferty stated
that people on the casual list are continually observed by
supervisors because it is the "best place" to obtain their
extra or regular drivers, that the Company get 90 percent
of their drivers from the list, and in their final evaluations
management will also refuse to call those drivers who do
not "measure up." Clearly, people on the casual list are
serving as probationary employees and all of the evidence
and testimony in this record is indicative thereof, and of
course, the fact that Lukens was hired as a casual or proba-
tionary employee does not in any way diminish his protec-
tion afforded by the Act. There is no license under any
Federal statute to interfere with or discriminate against
such employees in the exercise of their rights to self-organf-
zation or to refrain therefrom.6
6 Loose Leaf Metals Company, 181 NLRB 202 (1970), Lapeer Metal Prod-
ucts Co, 134 NLRB 1518, 1520 (1961)
At the time of hiring by the Company, new employees
here in question are required to execute a written form by
which the employee accepts employment on a casual list as
defined in the contract, and under the terms thereof the
Respondent has "no obligations" other than wages for ac-
tual hours worked, as set forth previously herein in the case
of Lukens. It appears that the main purpose and function
of this initial employment form is to insure that casual or
probationary employees have a clear understanding that
they do not acquire seniority and other regular employees'
benefits, but, of course, it in no way limits or waives an
employees' statutory Section 7 rights.
The credited testimony in this record clearly reveals that
Lukens was terminated because of his threat to go to the
Union. On the day Lukens was terminated, he complained
to Supervisor Singer that Gates had no right to talk to him
the way he had, and that he was going to the Union. Singer
then tried to dissuade Lukens from doing so by telling him
he had no rights as a casual employee, but Lukens would
have none cf this and repeated his intentions of invoking
whatever rights he had as a 4-year dues paying member of
the Union.' Singer then decided he would not "jeopardize"
his good friend Gates, and the most expedient way to solve
the problem was to terminate Lukens, and Singer promptly
did so.8
Respondent offered no claim that Lukens' work perfor-
mance was a basis for his termination, and it is clear that
Respondent did not decide to terminate Lukens because of
discussion with Gates. Even after his discussion with Gates
on November 24, Lukens, on November 26, was assigned
and completed a trip. It was not until Lukens insisted on
filing a grievance against Gates that his discharge became
a reality. In the final analysis, President Lafferty admitted
that "part of the reason" for the termination here in ques-
tion was the "friction" between Lukens and Gates, and I
find this factual situation most assuredly culminated in his
dismissal when Lukens pressed his determination by spe-
cifically informing Singer he would go to the Union and
"turn in a grievance" against Gates.
In its brief the Respondent now argues, for the first time,
that this case should be disposed of under the grievance
procedure. The General Counsel states that although a ca-
sual or probationary employee may have no rights to the
grievance procedure if he is terminated, there is no stated
restriction in the grievance procedure of the current con-
tract concerning rights to file grievances on other matters.
Lukens, therefore, although appearing to lack standing to
file grievances over his discharge, did have access to the
' Apparently Singer believed that casual employees had no legal rights
whatsoever, and had been enforced in this belief by three recent Board cases
against Respondent involving casual employees and which, for some rea-
sons not apparent in this record, had been withdrawn
B Lafferty, Singer and Gates have been with the Company for many years,
and admittedly have frequent social contacts with one another They jointly
own a camper marked "Dig, Bill and Glenn," occasionally play golf togeth-
er, and Lafferty along with other Company personnel, use the hunting lodge
owned by Gates
e Respondent also appears to maintain that Lukens was not actually ter-
minated but, as was it right under the contract, management merely elected
not to call him for work However, this record and exhibits duly reveal that
Lukens was terminated, and admittedly he is no longer called by the Com-
pany to perform any duties
LAFFERTY TRUCKING CO.
grievance procedure with respect to his complaints con-
cerning Gates' treatment of him.10
In the final analysis, Lukens did file grievances on No-
vember 26 against Gates for defamation of character and
over his discharge, but the grievances are still pending.
This record clearly shows that the Union has had a con-
stant history of antipathy or aversion toward Head Me-
chanic Gates, but for numerous reasons the Union has
been unable to pursue any successful actions against him,
and Gates' dual position as a Union member in the bar-
gaining unit , as well as the head supervisor responsible for
all mechanical work, has led to numerous difficulties.
Union Steward Charles Proctor testified that over the years
he has received constant complaints by employees or driv-
ers about Gates' manner of treating unit employees, and
stated the Union has carried these complaints to the Com-
pany. In 1967 there were attempts by employee Robert
Plowman to have Gates' Union card removed, and appar-
ently the situation was serious enough so that a business
agent of the Union was required to meet with Lafferty to
see if Gates' actions against Union members could be
stopped, but Union drivers continued to complain about
Gates. Plowman also maintained that in early 1973 Gates
caused Plowman's brother-in-law to leave the Company.
Proctor again in early 1973 complained to Lafferty about
Gates, but was told that management was "sick and tired"
of "generalities" about Gates and would only deal in spe-
cifics.
I point out the above because as far as this record is
concerned it is quite obvious that attempts to lodge any
sort of complaints against Gates always ends up in an inac-
tive status, and it is readily apparent that the two griev-
ances filed by Lukens have also ended up in that same
category, and, therefore, it is highly unlikely that the dis-
charge issued in this case could ever be disposed of under
the grievance procedure even assuming such a precedure is
available to a probationary or casual employee who has
been terminated, and which assumption is extremely
doubtful since the Respondent maintains that casual em-
ployees have absolutely no rights of any kind. The reason
for the prolonged delay in processing the grievances filed
by Lukens was supposedly because of an upcoming change
in Union officers at the end of the year (1973). As far as I
can ascertain this event took place, but months later the
grievances are still pending. It would seem therefore, that
the grievant has been deprived of basic procedural fairness,
and his only recourse is to the Board
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. A broad cease
and desist order is warranted in view of Respondent's dis-
criminatory conduct and other violations.
It has been found that Respondent unlawfully terminat-
ed Perry L. Lukens on November 26, 1973 It will therefore
10 See G C Exh 2-articles XXVI, XXIX and XXX
585
be recommended that Respondent offer him immediate
and full reinstatement to his former position, or if such
position no longer exists to a substantially equivalent posi-
tion, and without prejudice to his rights and privileges, and
to make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him by
payment of a sum equal to that which he would normally
have earned, absent the discrimination, from the date of
the discrimination to the date of Respondent's offer of re-
instatement, with backpay and interest computed in accor-
dance with the Board's established standards." It will be
further recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel re-
cords and reports and all other records necessary and use-
ful to determine the amount of backpay and the right to
reinstatement under the terms of these recommendations.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing 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 discharging Perry L. Lukens on November 26,
1973, thereby discouraging membership in the Union, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
4. By interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meanig of Section
2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERI2
The Respondent, Lafferty Trucking Co., its officers,
agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any
other labor organization of its employees, by discharging
employees or otherwise discriminating against them in re-
gard to their hire and tenure of employment or any term or
condition of employment.
(b) In any other manner interfering with, restraining or
" F W Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing &
Heating Co, 138 NLRB 716 (1962)
12 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
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coercing its employees in the exercise of their rights to self-
organization , to form , join , or assist labor organizations,
including the above -named organization , to bargain collec-
tively through representatives of their own choosing, to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer to Perry L. Lukens immediate and full rein-
statement to his former job or, if such job no longer exists,
to a substantially equivalent position , without prejudice to
his seniority , if any, or other rights and privileges, and
make him whole for any loss of earnings he may have suf-
fered by reason of the discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all pay-
rolls records , social security payment records , timecards,
personnel records, and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its place of business and terminal copies of
the attached notice marked "Appendix. "13 Copies of said
notice, on forms provided by the Regional Director for
Region 6 , after being duly signed by Respondent 's repre-
sentative , shall be posted by Respondent immediately
upon receipt thereof , and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places, where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced , or covered
by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate in
regard to the hire and tenure of employment or any
term or condition of employment of our employees
because of their membership in and activities on be-
half of the Union herein or of any other labor organi-
zation of their choice.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their rights
to self-organization , to form , join or assist labor orga-
nization , including the Union herein , to bargain col-
lectively through a bargaining agent chosen by our
employees, to engaged in concerted activities for the
purposes of collective bargaining or other mutual aid
or protection, or to refrain from any such activities.
WE WILL OFFER to Perry L. Lukens his former job or
if suchjob no longer exists, to substantially equivalent
position , without prejudice to his seniority , if any, or
other rights and privileges, and WE WILL pay him for
any loss of pay he may have suffered by reason of our
discrimination against him together with interest
thereon.
LAFFERTY TRUCKING CO.
13 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order