McKinley Transport Ltd.

National Labor Relations Board - Board Decisions

Aug 14, 1975

219 N.L.R.B. 1148 (N.L.R.B. 1975)

1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKinley Transport Limited and Lawrence O'Dell, DECISION
Jr. Case 7-CA-11502 (1)
August 14, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
JENKINS
On April 23, 1975, Administrative Law Judge Al-
mira Abbot Stevenson issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed cross-exceptions and a supporting
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, cross-ex-
ceptions, and briefs' and has decided to affirm the
rulings, findings, and conclusions 2 of the Adminis-
trative Law Judge and to adopt her recommended
Order.
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 the Respondent, McKinley Transport
Limited, Dearborn, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in said recommended Order.
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
This case was heard at Detroit, Michigan, February 18 and
19, 1975. The original charge was filed by Lawrence O'Dell
October 17, and served on the Respondent I October 18,
1974; the amended charge was filed December 3, and
served on the Respondent December 4, 1974. The com-
plaint was issued December 18, 1974. The issues are wheth-
er or not the Respondent violated Section 8(a)(1) of the
National Labor Relations Act, as amended, on October 31,
1974, by refusing to discuss a grievance filed by Lawrence
O'Dell because O'Dell had filed charges against the Re-
spondent with the National Labor Relations Board; and
whether or not the Respondent on November 4, 1974, vio-
lated Section 8(a)(4) and (1) of the Act by discharging
O'Dell because he filed charges against the Respondent
with the Board, and because, in concert with other employ-
ees, O'Dell sought the assistance of the U. S. Department
of Transportation with respect to the condition of certain
equipment operated by the Respondent.
The Respondent moved that the complaint be dismissed
on the ground that O'Dell filed a grievance with regard to
his November 4 termination under the collective-bargain-
ing agreement between the Respondent and International
Brotherhood of Teamsters, Chauffeurs, and Warehouse-
men of America and its Local Union No. 299; that the
Michigan Joint State Cartage and Over-the-Road Arbitra-
tion Committee denied the grievance and affirmed O'Dell's
termination ; and that the Board should defer to that
award . For the reasons given below , the motion is denied.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the Respondent and the General Coun-
sel, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
i Respondent's motion to strike General Counsel 's exceptions and brief is
hereby denied as without merit.
2 The Administrative Law Judge rejected the Respondent 's argument that
this case involving a violation of Sec. 8(aX4) of the Act should be referred to
arbitration under the Board 's decision in Spielberg Manufacturing Company,
112 NLRB 1080 (1955), and Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971 ). We agree. Members Fanning and Jen-
kins note , however, that they would not in any event defer to arbitration.
See their dissenting opinions in Collyer, supra, and subsequent cases decided
thereunder.
Chairman Murphy, who has not heretofore expressed her views on the
deferral policy enunciated in Collyer, supra, and/or its application to partic-
ular types of violation issues , deems it unnecessary here to express any views
on that policy generally since she believes that 8 (a)(4) issues are, in any
event, solely within the Board 's province to decide.
1. JURISDICTION
The Respondent is an Ontario, Canada, corporation en-
gaged as a common carrier in the international and inter-
state transportation of freight by motor truck. Its principal
office and place of business is located in Mississauga, On-
tario, Canada. It maintains other offices and terminals in
various States of the United States and Provinces of Cana-
da, including Dearborn, Michigan, the only facility in-
volved in this proceeding. During the calendar year ending
December 31, 1974, the Respondent had gross revenues in
excess of $ 100,000 and derived gross revenues in excess of
$50,000 from the international and interstate transporta-
tion of freight between Michigan and other States or On-
tario, Canada. The Respondent admits, and I conclude,
that it is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
i The name of the Respondent appears in the caption as corrected at the
hearing.
219 NLRB No. 184
MCKINLEY TRANSPORT LIMITED 1149
II. LABOR ORGANIZATION
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and its Local
Union No. 299 are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent admits and I find that Charles L. Gara-
vaglia , personnel manager and labor relations director, and
Leonard Szpara, Dearborn terminal manager , are supervi-
sors within the meaning of Section 2(11) of the Act and its
agents . Garavaglia, who has similar responsibilities for a
number of other employers , represented the Respondent at
all grievance and arbitration proceedings referred to here-
in.
The Respondent's employees are represented by Local
299. The Local 299 business agent is Francis W. Russell,
and the shop steward is Lawrence McInnes.
The employees are covered by the Teamsters' National
Master Freight Agreement effective July 1, 1973, through
March 31, 1976. The Agreement provides a grievance-arbi-
tration procedure requiring disputes to be taken up by the
employer and the local union, appealable by either, if not
adjusted, to the Michigan Joint State Cartage and Over-
the-Road Arbitration Committee. No appeal may be taken
from decisions reached by the Committee , which are final
and binding.
Lawrence O'Dell, the Charging Party, has been em-
ployed by the Respondent since January 1969, the last 2
years as a local cartage truckdriver . He is the only driver
on the night shift, from 11 or 11:30 p .m. until 6 or 6:30
a.m.
O'Dell was previously discharged by the Respondent in
March 1973 for leaving the keys in his truck which was
then stolen . O'Dell filed a grievance , which went before the
Arbitration Committee. After a hearing, the Committee or-
dered O'Dell reinstated with full seniority and no backpay
"and final probation," although O'Dell was never informed
of the award's probation caveat.
B. Immediate Events
O'Dell was suspended from his job with the Respondent
from June 27 until September 4, 1974 , on the ground that
he had failed to pass a physical examination required by
the Department of Transportation. He filed a grievance
requesting reinstatement and backpay for the period of his
suspension. While his grievance was pending , he was exam-
ined by Company doctors and doctors on his own, was
ruled fit, and was recalled to work September 4. Almost a
month later, on October 1 or 2, the Arbitration Committee
denied his request for backpay. On October 17, O'Dell
filed the original unfair labor practice charge in this pro-
ceeding . In that charge, O'Dell alleged that the Respondent
suspended him because of protected concerted activities in
which he had engaged . O'Dell subsequently filed with the
Board an amended charge withdrawing that allegation and
substituting the allegations upon which the complaint in
this proceeding is based.
During the month of October 1974, O'Dell also became
dissatisfied with the condition of the truck assigned to him,
as did several of the other drivers, who discussed the mat-
ter with each other and Steward McInnes. O'Dell made a
report of the defects in his equipment to the Respondent
and discussed the matter with Terminal Manager Szpara.
When Szpara displayed a negative attitude, O'Dell in-
formed him he intended to call the Department of Trans-
portation. On Friday, October 25, O'Dell did telephone
DOT and report that the Respondent's equipment was un-
safe , and informed McInnes he had done so. DOT inspec-
tors appeared at the Respondent 's premises October 30
and November 1, and checked all the equipment.
1. The October 31, 1974, grievance meeting
Meanwhile, O'Dell filed an additional grievance under
the collective-bargaining agreement , protesting a $30 de-
duction from his pay for one of the doctors who examined
him during his June-September layoff. This grievance was
presented to the Respondent by the Union at the local level
meeting held on October 31. The General Counsel alleges
that Personnel Manager and Labor Relations Director Ga-
ravaglia refused to discuss O'Dell's grievance because
O'Dell had filed the original unfair labor practice charge
against the Respondent which was still pending at the time,
and because O'Dell reported the Respondent to DOT, and
that such refusal constituted a violation of Section 8(axl)
of the Act.
The local level grievance meeting was attended by Gara-
vaglia for the Respondent , and by Business Agent Russell
and Steward McInnes for the Union. O'Dell and several
other grievants were in attendance when their individual
grievances were presented.
In resolving the conflicting accounts as to what occurred
at the presentation of O'Dell's grievance , I have considered
the demeanor and the entire testimony of all four of the
witnesses who attended the meeting, mutual corroboration
or lack of it, and the probabilities in light of the entire
record. Thus, although it is clear that Garavaglia knew that
the Respondent had been reported to DOT, despite his
unconvincing denial, I find that he did comment that some
"employees" had "seen fit to contact [DOT] requesting
that equipment inspection ," as testified to by Business
Agent Russell . On the other hand, O'Dell's testimony that
Garavaglia appeared to accuse him personally of having
done so is not corroborated, and it seems very unlikely that
Garavaglia knew or suspected he was the one. Even Rus-
sell did not know it, and Garavaglia 's comment conformed
with Russell's admitted assumption at the time that more
than one person had called the DOT.
I find, however, that Garavaglia did refuse to discuss
O'Dell's grievance , and that he gave as the reason O'Dell's
having filed an unfair labor practice charge with the Board.
Although Garavaglia also refused to discuss any of the
2 These factual findings are based on the substantially mutually corrobo-
rative testimony of O'Dell and McInnes . Szpara failed to flatly-deny the
conversation with O'Dell, testifying only that he could not recall it.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other grievances presented at this meeting , O'Dell, Russell,
and McInnes all testified that he specifically attributed his
refusal to discuss O'Dell's to his charge , a copy of which
Garavaglia admitted having received.
Having discredited Garavaglia 's denial of the above cor-
roborative testimony , I further find the Respondent 's addi-
tional defenses to this allegation must also fail. Thus, as
Garavaglia did not contend that his handling of O'Dell's
grievance was in any way affected by its not being in writ-
ing, I find no merit in the Respondent 's contention that it
was Garavaglia 's prerogative to refuse to discuss the griev-
ance for that reason , and that the evidence as to whether or
not the grievance had in fact been reduced to writing is
irrelevant. Nor is it significant that O'Dell's $30 claim was
eventually sustained by the Arbitration Committee and the
money refunded to him by the Respondent . It is not the
effect of conduct which is crucial , but whether it may rea-
sonably be said to tend to interfere with the free exercise of
employee rights under the Act 3
I conclude that Garavaglia's refusal to discuss O'Dell's
grievance because he filed an unfair labor practice charge
with the Board tended to interfere with the free exercise of
employee rights under the Act, and violated Section
8(#I)°
2. O'Dell's termination
The complaint further alleges that on November 4, 1974,
Terminal Manager Szpara discharged O'Dell because he
filed charges with the Board and because he , in concert
with other employees , sought the assistance of the Depart-
ment of Transportation with respect to the condition of
equipment operated by the Respondent , in violation of
Section 8(a)(4) and ( 1) of the Act.
As indicated , it is undisputed that DOT inspectors were
at the terminal premises on October 30, and early Friday
morning , November 1, for their final inspection of the
Respondent 's equipment.
I credit Terminal Manager Szpara , whose testimony in
this respect was not clearly controverted by O'Dell 's state-
ment that an inspector ordered his truck shut down until
the brakes were repaired , that aside from two or three mi-
nor items requiring immediate simple adjustments, the
DOT inspectors found nothing wrong with the
Respondent's equipment , and none of the equipment was
found unsafe or taken out of service.
O'Dell was scheduled to work Friday night, November
1, at 11 or 11:30. He had called in (also referred to in the
industry as booking or marking off) sick the preceding Fri-
day night, October 25. The Friday before that, October 18,
O'Dell had called in sick because of a sprained ankle.
O'Dell was not reprimanded for either of those absences.
The events of Friday night , November 1, are also in dis-
pute . I have resolved the conflicts among the four witnesses
to these events on the same bases delineated above, and
3 Melville Confections, Inc. v . N L.R.B., 327 F .2d 689 , 692 (C .A. 7, 1964);
Time-O-Matic, Inc. v . N L.R.B., 264 F .2d 97, 99 (C.A. 7, 1959); Impact Die
Casting Corporation, 199 NLRB 268, 271 (1972).
4 Whale Oil Company, Inc, 169 NLRB 51 (1968 ). Accord . Hardwick
Clothes, Inc., 180 NLRB 690, 6% (1970).
find as follows.
Before Szpara left the terminal at 6 p.m. that afternoon,
he noticed that O'Dell, who as stated was the only driver
on the night shift, had been absent the two preceding Fri-
days . Szpara therefore told Dispatcher Rick Farough that
if O'Dell called in to book off sick , or for personal reasons,
to tell him he must bring a doctor's certificate or specify a
valid reason.
I credit Szpara's testimony that he had taken over as
terminal manager in September 1974 with instructions to
improve the operation which had been too lax and was in
the red . Among other steps he took was to call for the
attendance records of the employees . The records revealed
that O 'Dell and three others (remembered by Szpara as
Hood, Ramey, and McInnes) had real absentee problems.
Szpara thereafter made it a weekly practice to review the
timecards, and it was thus he discovered O'Dell's two suc-
cessive Friday absences . This testimony is not disputed;
the Respondent 's records , incomplete as they are, tend to
support Szpara at least to the extent that O'Dell was one of
four of the employees with the highest record of daily ab-
sences for which no reasons were noted ;5 and O'Dell was
the only employee who had been absent for two successive
Fridays.
About 7:30 p.m. on Friday, November 1, O'Dell tele-
phoned Dispatcher Farough from the home of a friend and
told Farough he was booking off sick . Farough informed
him he would have to bring a doctor's slip the next working
day to prove it. O'Dell protested that under the collective-
bargaining agreement, a doctor's certificate was not re-
quired for 1 day's sickness, and said he intended to take the
matter up with the steward .6
After this phone call, O'Dell went to his home where he
encountered a family crisis. Because of this , O'Dell tele-
phoned the terminal again. After getting William Cloven, a
dockman , to listen on the extension , O'Dell told the dis-
patcher he was booking off for personal reasons . Farough
replied that Szpara would not accept personal business as
an excuse and O 'Dell would have to say what the reason
was. O'Dell protested he did not have to tell , and pointed
out that he could get off by clocking in and claiming to be
sick, and Farough would have to send him to the clinic.
Farough responded that he would get hold of Szpara and
call O'Dell back.
Farough reached Szpara at home, and repeated his con-
versations with O'Dell. Szpara said if O'Dell produced a
doctor's slip it would be O.K., but if he refused to give a
valid reason for not coming in, it would be considered a
voluntary quit . Farough then called O'Dell back and re-
layed the message . When O 'Dell adhered to his personal
business book off, the dispatcher told him "okay, Mr.
Szpara would take care of it on Monday."
O'Dell did not report for work that night, and the fol-
lowing Monday, November 4, he received the following
3 The call-in sheets, which Szpara indicated contained the reason given
for daily absences , are not in evidence . The attendance records discussed
herein contain a reason for extended absences of a week or longer.
6O'Dell 's testimony that Farough jumped him about the doctor's slip
requirement before O 'Dell said anything to Farough , and that he never
asked to book off sick , strikes me as wildly improbable because O'Dell
never explained why he telephoned Farough and no other reason is suggest-
ed. I do not credit O'Dell here.
MCKINLEY TRANSPORT LIMITED 1151
telegram from Szpara.
You were ordered to report to work Friday November
1 you failed to do so we hereby accept hour voluntary
quit.
O'Dell filed a grievance in protest of his termination.
The Arbitration Committee heard his grievance November
12 or 13, 1974, and upheld the voluntary quit. O'Dell ap-
peared before the Committee again January 14 or 15, 1975,
but the ruling was "that there was not sufficient evidence
to warrant a rehearing ." O'Dell was penalized by the Mich-
igan Employment Security Commission by a 6-week delay
on his unemployment benefits on the ground that he "was
removed from the Company rolls as a quit when he failed
to report for work when requested by the employer."
Although O'Dell's bringing about the DOT inspection
appears on the facts to have been of a concerted nature
protected by the Act,7 the credible evidence fails, in my
opinion, to support the General Counsel's contention that
either that action or O'Dell 's filing of the unfair labor prac-
tice charge was a factor in Szpara's decision to terminate
him. There is no direct evidence that Szpara knew it was
O'Dell who had called the DOT. As found above, only
Steward McInnes was told about it, and neither Garavaglia
nor Business Agent Russell shared his knowledge . In view
of the evidence that several drivers expressed dissatisfac-
tion with the condition of their trucks and Russell's as-
sumption that more than one person had called DOT,
O'Dell's statement to Szpara that he intended to do so is
not enough standing alone to justify the inference of
knowledge by Szpara . In any event , Szpara appears not to
have been annoyed by the inspection and no serious incon-
venience or expense for the Respondent seems to have re-
sulted from it.
Moreover, there is no indication that Szpara harbored
any animus against O'Dell for filing the unfair labor prac-
tice charge , which was based on events which occurred
before Szpara took over the terminal. My observation of
Szpara and Garavaglia revealed them to be two quite dif-
ferent types, with different duties and responsibilities and
only occasional contact with each other, and I am not con-
vinced that Szpara would react the same way Garavaglia
did to such information or that he would construct such an
elaborate trap for O'Dell for this reason .8
Other considerations offered by the General Counsel in
support of his pretext theory are similarly unpersuasive.
Disparate treatment of O'Dell is not shown by the atten-
dance records which show his absentee record among the
highest in the Company, and that he was the only employ-
ee who was absent three successive Fridays . In addition
O'Dell's hearsay testimony that other employees had told
him they had booked off for personal business without
penalty was balanced out by McInnes' indication that he
7 See Wray Electric Contracting, Inc., 210 NLRB 757 (1974); Gibbs Die
Casting Aluminum Corp., Gibbs Federal Division, 174 NLRB 75, 79 ( 1969);
Westmont Tractor Company , 173 NLRB 1188 (1968), enfd. 428 F.2d 825
(C.A. 9, 1970); Illinois Ruan Transport Corporation 165 NLRB 227, 231-232
(1967).
8 See Southwest Ornamental Iron Co., 201 NLRB 1023 (1973); Douglas
Electric Cooperative, Inc., 194 NLRB 821 (1972).
had been suspended for doing so in the past. Nor can the
contention that the termination of O'Dell was in total dis-
regard of the contractual provisions stand, in view of the
upholding of Szpara's action by the Arbitration Commit-
tee.
We are left then with the single violation of Section
8(a)(1) by Garavaglia and the timing of the termination
within 2 weeks of the filing of the unfair labor practice
charge and the call to DOT. In view of the facts as found,
and O'Dell's adamant refusal to heed Szpara 's reasonable
instructions and his warning as conveyed to O'Dell by Dis-
patcher Farough, I find that the single violation and the
timing is not enough to support a pretext finding.
Accordingly, I conclude that a preponderance of the
credible evidence fails to establish that O'Dell was termi-
nated for unlawful reasons, and recommend that this alle-
gation of the complaint be dismissed.9
IV. THE ARBITRATION AWARD
The Respondent relies heavily on the broad language
employed by the Board in its decision in Electronic Repro-
duction Service Corporation , 213 NLRB 758 (1974), in sup-
port of its contention that the Board should defer to the
award of the Arbitration Committee upholding O'Dell's
voluntary quit . Careful reading of the Board 's decision in
that case does not indicate , however, a predisposition by
the Board to apply the Spielberg Manufacturing Company
rule (112 NLRB 1080 (1955) ), as affirmed in Collyer Insu-
lated Wire, A Gulf and Western Systems Co., 192 NLRB 837
(1971), to a situation like this where an alleged violation of
Section 8(aX4) is in issue . No,other precedent has been
called to my attention , and I have found none , for defer-
ring the resolution of such an issue or an issue directly
related thereto to the arbitration process . On the contrary,
the Board , in referring to the right of access to its proce-
dures as being within its exclusive jurisdiction , has said,
"Congress has empowered the Board to protect employees
who file charges. Under these circumstances , we believe
that we must assume the duty to protect [ the employee's]
rights under the Act when called upon to do so." 10 More
recently , the Board has approved statements to the effect
"that the maintenance of free access to the Board's pro-
cesses, and prohibiting interference therewith is a duty re-
served to the Board . . . and is not to be delegated to the
parties or exclusively subject to collective bargaining";"
and that an alleged attempt to hinder access to the Board is
"a matter particularly appropriate for the Board itself to
handle ." 12 As those expressed principles are clearly appli-
cable to this proceeding , I have denied the Respondent's
motion to dismiss the complaint on this ground.
9 See Olympic Delivery Service ., d/b/a Rocket Messenger Service, 167
NLRB 252 (1967); Klate Holt Co, 161 NLRB 1606 ( 1966). See , also, Suc-
cessj'ul Creations, Inc., 202 NLRB 242 (1973).
i Local 138, International Union of Operating Engineers, AFL-CIO
(Charles S. Skura), 148 NLRB 679, 684 (1964).
ii Local No. 453, International Molders' and Allied Workers' Union, AFL-
CIO (Josam Manufacturing Co.), 208 NLRB 868, (1974).
ii Diversified Industries, a Division of Independent Stove Company, 208
NLRB 233, (1973).
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. REMEDY
Having found that the Respondent engaged in unfair
labor practices within the meaning of Section 8(axl) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended: 13
ORDER
The Respondent, McKinley Transport Limited, Dear-
born , Michigan , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to discuss employee grievances because
charges have been filed against the Respondent with the
National Labor Relations Board.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by the National Labor Relations Act, as
amended.
2. Take the following affirmative action:
(a) Post at its terminal at Dearborn , Michigan copies of
the attached notice marked "Appendix." 14 Copies of said
notice, on forms provided by the Regional Director of Re-
gion 7, after being duly signed by an authorized represen-
tative of the Respondent , shall be posted immediately upon
receipt thereof and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees customarily are posted. Rea-
sonable steps shall be taken by the Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 7, in writ-
ing, within 20 days of the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint , insofar as it
alleges unfair labor practices not specifically found herein,
be and it hereby is dismissed.
13 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 , recommendations , 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.
14 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 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 refuse to discuss employee grievances
because charges have been filed against us with the
National Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, coerce , or restrain our employees in the exercise
of rights guaranteed by the National Labor Relations
Act, as amended.
MCKINLEY TRANSPORT LIMITED