Mitchell Transport, Inc.

National Labor Relations Board - Board Decisions

Apr 26, 1965

152 N.L.R.B. 122 (N.L.R.B. 1965)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mitchell Transport , Inc. and Charles L. Hawkins . Case No. 25-
CA-1760. April 06, 1965
DECISION AND ORDER
On June 23, 1964, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging 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 Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision 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 powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Decision, the excep-
tions and brief, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
except as modified herein.
The Trial Examiner found that Respondent discharged Charles L.
Hawkins, the Charging Party, because he filed grievances under a
contract between Respondent and the collective-bargaining representa-
tive, and thereby violated Section 8(a) (3) of the Act. We are unable
to concur in this finding.
As more fully chronicled in the Decision, Respondent and the Union
were parties to a collective-bargaining agreement which contained a
clause setting forth a grievance procedure, as well as a clause which
made it a dischargeable offense for any employee to refuse to perform
an assigned driving run. Hawkins had been employed by Respondent
for many years. In mid-1961 and again in early 1962, he had been
characterized by certain of Respondent's supervisors as a "trouble-
maker"' and, on the latter occasion, Respondent's regional manager,
Tregoning, instructed Terminal Manager Burgess to inform Tregon-
ing if Hawkins thereafter indulged in misconduct of such sufficient
gravity as to establish a basis for a discharge that would be upheld by
the grievance committee. Between December 4, 1962, and February 7,
1963, Hawkins filed seven grievances under the contract and also com-
plained to the Interstate Commerce Commission concerning the condi-
tion of Respondent's equipment. The Trial Examiner found that,
during January 1963, Burgess informed an employee that Hawkins
would be discharged if he persisted in grieving and instructed another
employee to convey this intelligence to Hawkins.
152 NLRB No. 10.
MITCHELL TRANSPORT, INC. 123
On March 21, 1963, Hawkins was dispatched on a run by Respond-
ent's female office manager. Hawkins adamantly refused to perform
this assignment. The Trial Examiner found that the refusal was
predicated upon Hawkins' unwillingness to take orders from a woman,
and that Hawkins remarked that he expected to be disciplined or dis-
charged for this insubordination and that he needed a vacation any-
way. Hawkins was in fact discharged for insubordination. There-
after, Hawkins filed a grievance concerning this discharge, a hearing
thereon was held on April 23, and the grievance committee upheld the
discharge on the ground that Hawkins' refusal to make the run war-
ranted his termination under the contractual provision pertaining to
this misconduct. Based on the testimony of employee Thomas Reid,
the Trial Examiner found that, on the following day, Burgess and
Reid engaged in a conversation concerning the reason for Hawkins'
discharge, during which Burgess stated that "it wasn't only turning
down the load that got him, it was what he had done before." Relying
principally upon this statement, the Trial Examiner inferred that what
Hawkins "had done before" had reference to his grievance activity
and therefore concluded that the discharge was impelled by this activ-
ity. We do not believe that this inference is warranted in light of
Reid's further testimony concerning his conversation with Burgess.
Thus, Burgess stated that he appeared at the grievance proceeding
"with a brief case full of stuff on [Hawkins] and it happened a long
time ago." [Emphasis supplied.] In our opinion, it seems most un-
likely that Burgess could have been referring to Hawkins' prior griev-
ances inasmuch as such "stuff" could hardly serve as a basis under the
contract for Hawkins' termination.
Engaging in protected, concerted activity, such as the filing of con-
tractual grievances, does not perforce immunize employees against
discharge for legitimate reasons. Hawkins had clearly and deliber-
ately engaged in an act of misconduct, and there is no showing on
this record that the misconduct was provoked by Respondent. We are
satisfied from all the evidence that his punishment for insubordination
was no different from that which any other employee, similarly.situ-
ated, would have received under like circumstances. Viewing the record
as a whole, we are not convinced that a preponderance of the evidence
supports the Trial Examiner's finding that Hawkins was discharged
because he had filed grievances. Accordingly, we shall dismiss the
complaint insofar as it alleges that the discharge was violative of
Section 8(a) (3) of the Act. However, we do not disturb the Trial
Examiner's findings that Respondent independently violated Section
8(a) (1).
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, Mitchell Transport, Inc., Cleveland, Ohio, its officers,
agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Threatening employees with discharge if they file grievances
under a contract between Respondent and their collective-bargaining
representative.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self- organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities.
2. Take the following affirmative action which the Board finds neces-
sary and appropriate to effectuate the purposes of the Act :
(a) Post at its terminal at Mitchell, Indiana, copies of the attached
notice marked "Appendix." 1 Copies of said notice, to be furnished by
the Regional Director for Region 25, shall, after being duly signed by
Respondent's authorized representative, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to
its employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for Region 25, in writing, within
10 days from the date of this Order, what steps Respondent has taken
to comply herewith.
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees with discharge if they
file grievances under a contract between our Company and their
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with the
rights of our employees under the National Labor Relations Act,
as amended.
MITCHELL TRANSPORT, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
MITCHELL TRANSPORT , INC. 125
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.
Employees may communicate directly with the Board 's Regional
Office , 614 ISTA Center, 150 West Market Street, Indianapolis, In-
diana, Telephone No. Melrose 3-8921, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter referred to as the Act, was heard before Trial Examiner William
J. Brown at Bedford , Indiana, on March 17, 1964. The underlying charge of unfair
labor practice had been filed May 31, 1963, 1 and on October 14, the Acting Regional
Director for Region 25 communicated to the Charging Party his decision to refuse to
issue a complaint thereon. Thereafter , following request for review of the Acting
Regional Director 's decision , the General Counsel by the Director, Office of Appeals,
set aside the Acting Regional Director 's decision and instructed him to issue the com-
plaint herein . The complaint issued February 6, 1964. It alleged, and Respondent's
duly filed answer denied , the commission of unfair labor practices defined in Section
8(a)(1) and (3) of the Act. The principal issue concerns the discharge of Charles
Hawkins; a related issue concerns alleged threats of discharge.
At the hearing all parties appeared and participated ; they were accorded full oppor-
tunity to present evidence and argument on the issues . After the hearing the General
Counsel and the Respondent filed briefs which have been fully considered.
Upon the entire record herein ,2 and on the basis of my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT EMPLOYER
The pleadings and evidence herein indicate and I find that the Respondent , Mitchell
Transport, Inc., is a corporation organized under the laws of the State of Indiana with
its principal office in Cleveland , Ohio, and terminals in the States of New York,
Maryland, Iowa, and Illinois and one in Mitchell , Indiana. At these terminals it is
engaged in interstate transportation of goods and merchandise . During the year 1963
Respondent's revenues exceeded $500,000 of which more than $50,000 were derived
from services performed outside the State of Indiana. The issues involved in the
instant case concern events occurring at the Mitchell , Indiana, terminal . I find, as
Respondent concedes, that it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it would effectuate the policies of the
Act for the Board to assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence herein indicate and I find that Local 135, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the
labor organization involved herein and hereinafter sometimes referred to as the
Union, is a labor organization within the purview of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. Introduction to the issues
The principal issue herein relates to the discharge of Charles Hawkins on March 21.
On that date Hawkins was discharged by Terminal Manager Dennis Burgess who acted
at the instruction of Maurice Tregoning , Respondent 's mid-west regional manager in
charge of seven terminals including that at Mitchell , Indiana.
1 Dates hereinafter refer to the year 1963 unless otherwise Indicated
2 Subsequent to the filing of briefs , counsel for Respondent filed a motion to clarify
factual assertions in General Counsel's brief The motion essentially directs my atten-
tion to a paragraph of the report of decisions of a joint grievance committee concerning
abstention of interested members. The motion, unopposed by the General Counsel, an-
pears to be a superfluity Absent opposition , it is granted and the moving pavers are
hereby ordered incorporated into the record hereof
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In connection with his discharge , Hawkins was given a letter dated March 21,
signed by Burgess and assigning as the reason for the discharge Hawkins' refusal to
haul a load .3 Thereafter , on March 22, Hawkins filed a grievance protesting his dis-
charge. On April 23 , the Multi-State Cement Grievance Committee , acting by
majority vote of the three employers and three union representatives , upheld the dis-
charge. Subsequent efforts by Hawkins to reopen the matter for further grievance
discussions on ground of newly discovered evidence were unavailing.
In addition to the discharge of Hawkins , the instant case involves allegations of the
complaint that Burgess, on several occasions in the period November 1962 to June
1963, threatened employees with discharge if they persisted in filing grievances.
The General Counsel 's position asserted throughout the hearing and in his brief is
that Hawkins was in fact discharged because of his grievance filing, asserted to be
a concerted activity protected under Section 7 of the Act , and that the Joint Com-
mittee decision cannot or should not preclude remedial action at the hands of the
Board because of Tregoning 's failure to disclose to the Joint Committee his pre-
arrangement with Burgess to discharge Hawkins for his grievance filing.
Respondent , on the other hand, asserts that in accordance with Board policy out-
lined in Spielberg Mfg. Co., 112 NLRB 1080 , the Joint Committee 's disposition of the
discharge should be upheld particularly in view of presentation to the Committee of
evidence bearing on the matter of uniformity of treatment of drivers for the offense of
refusal of a run. Respondent further contends that in the event the Joint Committee
disposition is not accepted and the matter is considered de novo , the evidence in the
instant proceeding fails to preponderate in favor of a finding that Hawkins' discharge
was in reprisal for his grievance filing but rather supports the view that he was dis-
charged pursuant to the uniform rules and regulations for refusal of a run . The uni-
form rules and regulations , General Counsel 's Exhibit No. 10, appears to have bilateral
approval and to be recognized in the collective -bargaining agreement , General Coun-
sel's Exhibit No. 9, article XII.
With respect to the allegations in the complaint of threats on the part of Burgess,
Respondent in its brief contends that there is no credible evidence substantiating the
charges.
B. The discharge of Charles Hawkins
Charles Hawkins, the Charging Party herein, was employed as an over-the-road
truckdriver at the Mitchell terminal since 1953.4 He first worked for Mitchell Trans-
port's predecessor , Martin Bros . which was acquired by Mitchell Transport sometime
in 1959. The trucking operations involved are confined to the hauling of powdered
cement for Lehigh Portland Cement Company from the latter's mill in Mitchell,
Indiana, to purchasers served by Lehigh out of its Mitchell plant. Respondent's ter-
minal adjoins Lehigh's mill.
The terms and conditions of employment for Respondent 's operating employees
at the Mitchell terminal are established by a collective-bargaining agreement entered
into between Mitchell and The Central and Southern Conference of Teamsters and
Local Union No. 135, affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. The parties to the agreement
have also jointly established and published a set of uniform rules and regulations
effective October 1, 1960 , and governing the types of misconduct subject to discipline
and the extent of discipline applicable for each proscribed offense. Among the
offenses listed under the compendious category of "Miscellaneous " in section 7(e) of
the uniform rules is "Refusal of run" for which the penalty prescribed therein is
"Subject to discharge."
The agreement contains a grievance procedure providing for discussion of griev-
ances between employer and union representatives with resort to Joint Committee
arbitration in the event the grievance is not resolved at earlier discussions. While
there is no direct evidence of grievance activity on the part of Hawkins prior to
December 1962, testimony was offered tending to establish that prior to that time
Respondent 's supervisory officials regarded Hawkins as a troublemaker because of
his activity in this connection.
3 There is evidence bearing on the varying degrees of responsibility of a driver in
relation to loading, accepting load ticket , and accepting bill of lading This evidence is
considerably vague and , as I see the case , not conclusive
& Hawkins appears to have been high on the seniority list of Respondent ' s drivers
inasmuch as the evidence indicates that the steward and No 1 driver , Robert Edwards,
was hired only 2 months before Hawkins.
MITCHELL TRANSPORT, INC. 127
Burgess, who impressed me as credible notwithstanding Respondent's attack on him
as a disgruntled ex-supervisor,5 testified that when he assumed the post of terminal
manager at Mitchell in July of 1961, he was informed by his predecessor, Dworznik,
that Hawkins was a troublemaker and that Burgess should get rid of him. Later,
early in 1962, when Tregoning became mid-west regional manager with control of
the Mitchell terminal among others, Tregoning, according to Burgess' testimony,
informed Burgess that Hawkins was a troublemaker and if Burgess ever got anything
serious enough against Hawkins to stand up before a joint committee, he should call
Tregoning for instructions. Although Tregoning denied ever threatening Hawkins
with discharge for filing grievances, he did not deny the testimony of Burgess attribut-
ing to Tregoning the instructions concerning Hawkins referred to above. I find in
accordance with the credited testimony of Burgess, undenied by Tregoning, that
Burgess had instructions from Tregoning to report to him for further instructions in
the event of a major provable offense committed by Hawkins and that the reason
for the issuance of such instructions was Tregoning's appraisal of Hawkins as a
troublemaker.
There is, in addition, other testimony tending to establish Respondent's dissatisfac-
tion with Hawkins as a troublemaker. Thus, company driver George Pruett testified
that Burgess stated to him in January 1963 that if Hawkins did not quit filing so many
grievances he was going to be fired. I credit Pruett's testimony in this regard. Addi-
tionally, Harley Childers, a recently hired driver for Mitchell on layoff at the time of
the hearing, credibly attributed to Burgess the statement in January of 1963 to the
effect that Childers should advise Hawkins to quit filing grievances or he would be
fired. Also Edwards, the union steward and top driver, testified credibly that in Janu-
ary Burgess informed him that Hawkins would be fired and would take others with
him. This conversation, according to Edwards, whom I credit, also involved the
admission of Burgess that a reprimand issued to Edwards was really motivated by the
Company's belief that Edwards was closely sympathetic with Hawkins in the latter's
grievance filing.6
There is direct evidence establishing the substantiality of Hawkins' grievance filing
in the months immediately preceding his discharge. General Counsel's Exhibit No.
2 includes copies of seven grievances filed in the period December 4, 1962, to Febru-
ary 7, 1963 They include his protests over such a heterogeneity of subjects as vaca-
tion and holiday pay, reprimands respecting call-in, Thanksgiving Day pay, refusal
(by the Company) of a run, alleged falsification of log, gassing of trucks, and shuttle-
driving. In addition to these, there is testimony of Hawkins, undenied and credited,
that in January 1963 he communicated with the Interstate Commerce Commission's
Regional Office concerning his complaints as to the condition of the equipment.
We now turn to testimony relating to events occurring on March 21, the date of
Hawkins' discharge. As a prelude to consideration of those events and as element
involved in consideration of the issues herein, it is important to consider certain provi-
sions applicable to company drivers. In the first place, according to the undenied
and credited testimony of Tregoning, Interstate Commerce Commission regulations
applicable to the driving operations concerned herein permit drivers to work up to
maximum of 16 hours in any one day subject to a maximum of 10 hours in driving
operations in any one day. Furthermore, under the provisions of the collective-
bargaining agreement covering the Mitchell terminal, drivers called and put to work
are guaranteed 6 hours' pay at their applicable rate; it is thus to the Company's advan-
tage in certain circumstances to work a driver overtime even at a premium rate rather
than call in and put to work a replacement driver.
The bilaterally adopted uniform rules and regulations also govern company drivers
and advise them as to the "duties . . . required of them in the general conduct of the
company's business." Paragraph 7(e) of the uniform rules provides for the offense of
"refusal of run" that the offender is "subject to discharge." The penalty of "subject
to discharge" is also prescribed for numerous other listed offenses ranging from
major chargeable accident through fourth occasion of reporting for work unclean or
in filthy clothing. There is no indication in the evidence nor is it contended in argu-
5 Respondent's brief asserts that Burgess "holds no affection" for the Company, yet
his examination and cross-examination reveal no partisanship or interest in the outcome
of the case He was not interrogated as to circumstances under which he left the Com-
pany's employ.
6 Thomas Reid, a company driver, testified for the General Counsel concerning like
statements of Burgess He impressed me as thoroughly credible but, apparently through
mistake, placed the time thereof as occurring in the fall of 1963 I therefore do not
regard his testimony as probative in this particular
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment that the words "subject to discharge" mean anything other than their normal
import, viz, that for refusal of a run (and offenses also "subject to discharge") the
Company may but need not invoke the penalty of discharge.
At 3:30 a.m. on the morning of March 21, Hawkins left on a run to Shelbyville,
Indiana. On his return, through the fault of another driver, he had a near collision
at an intersection between Bedford and Mitchell 7 and averted collision only by hasty
braking with resulting near jackknifing of his equipment. As appears from a stipula-
tion of the parties Hawkins, on his return to the Mitchell terminal, had worked 8
hours of which 7 had been spent in driving.
Shortly before Hawkins' arrival at Mitchell, terminal dispatcher Noble Williams
had left for lunch and had instructed the office manager, Miller, to watch the dispatch,
further informing her that Hawkins was dispatched for the last load to Bloomington.
According to her testimony she handed Hawkins his dispatch orders and Hawkins
said that he would not take the load, a statement which he repeated after Miller
informed him that Williams had assigned him to take the load in question. Miller
testified that she then called Williams for instructions and Williams directed her to
inform Hawkins that if he did not haul the load his action would be considered a
refusal of a run under the uniform rules and regulations. Miller, did, according to
her account, then inform Hawkins of Williams' statement and Hawkins persisted in
his refusal. At this point Williams called the office to inquire as to Hawkins' position
and, when informed by Miller that Hawkins persisted in his refusal, instructed Miller
to have a union member verify the refusal. Gene Munday, a company driver, there-
upon witnessed a final refusal of Hawkins to take the load and a statement that he did
not care whether or not it was considered a refusal of a run under the uniform rules
and regulations. Munday was then assigned to and hauled the load to Bloomington.
According to Miller, Hawkins made no mention of a reason for refusing the load until
after Munday's appearance when he mentioned, more or less as an afterthought, that
he had a headache.
Hawkins' account is essentially no different from Miller's except that he apparently
places his announcement of his headache somewhat earlier in this contretemps. I
credit Miller's account which would indicate that his reference to a headache was an
afterthought. In any event I see the evidence as insufficient to establish any sub-
stantial disability on the part of Hawkins of a degree that would impair safety of
operation or his own health. The evidence furthermore would not support the con-
clusion that any claim of physical disability was reported to Burgess or Tregoning at
the time, or that Hawkins requested that it be so reported.
The incident of Hawkins and the Bloomington run was reported by Williams and
Miller to Burgess who telephoned Tregoning for instructions. Tregoning, according
to Burgess' uncontradicted account, informed Burgess he would call him back with
instructions, and almost immediately thereafter he instructed Burgess to discharge
Hawkins. Burgess called Hawkins at home and left word for Hawkins, who was not
there, to come to the office.
In the meantime Hawkins had gone home, rested, and taken some medicine, and
then returned to the office where he informed Williams that he felt better and would
take a load out if necessary. There were no loads available however. Hawkins then
again returned home and went about some personal affairs. He also visited the union
office where he conversed with Teamsters' Union Representative John May and
May's secretary, Dolores White. According to May this visit occurred about 4
p in. and, in the course of it, Hawkins stated that he expected to be discharged because
of his refusal to take orders from a woman, explaining to May, according to May's
account, that he had turned a load down because the order to take it came from a
woman.
White placed the time of Hawkins' visit as about 2 or 2:30 p.m. and testified that
Hawkins said that he had refused to take an order from a woman and he hoped he was
fired because he needed a paid vacation. According to White, Hawkins had been
working on his pond.
Hawkins was not called in rebuttal of this testimony of May's and White's and,
making due allowance for minor discrepancies in their accounts as to the time of his
visit to the union office, I credit their testimony to the extent it establishes that Hawkins
admitted refusing an order for which he expected discipline or discharge.
As noted above Tregoning directed Burgess to discharge Hawkins. When Hawkins
again returned to the company office late in the afternoon (about 5:45 p.m. accord-
ing to his estimate) he was handed a sealed envelope by Burgess which, according to
Hawkins' own account, he did not open until he reached home. The envelope con-
tained a letter signed by Burgess and discharging him for refusal to haul the Blooming-
7I take judicial notice that the distance between the near collision and the terminal
is less than 15 miles ( 9 Wlgmore , Evidence § § 2580, 2581 ( 3d ed.).
MITCHELL TRANSPORT, INC. 129
ton load. I do not view Hawkins' failure to indicate any interest in the contents of
the envelope as in itself indicating necessarily that he was resigned to discharge, since
he was, simultaneously with delivery, told by Burgess that he was discharged and
given his terminal checks. There are, however, other indicia above noted showing
that Hawkins expected discipline or discharge.
C. Events subsequent to Hawkins ' discharge
On March 22, the day following his discharge, Hawkins and his steward, Edwards,
filed a grievance alleging that the discharge was violative of the collective-bargaining
agreement and requesting reinstatement and backpay. The grievance was processed
through the business representative's office and ultimately led to the Joint Committee
decision of April 23 referred to above.
Also, on the day following Hawkins' discharge, there was, according to the uncon-
tradicted and credited testimony of company driver Pruett, a conversation in the
company office between himself and Burgess in which Pruett asked why Hawkins had
been discharged and Burgess replied that the Company had been waiting for Hawkins
to slip up but they were surprised that he had made it so easy for them to discharge
him.
In similar vein, there was according to Pruett and fellow employee Batchellor a
conversation on a day about 2 weeks following Hawkins' discharge between the two
and Burgess. On that occasion according to testimony of Pruett and Batchellor, there
was a chance meeting in a tavern in which Burgess stated that he had repeatedly
warned Hawkins that if he did not quit filing so many grievances the Company would
fire him. According to Pruett, Burgess added the statement that that was just what
had happened.
Finally, according to the testimony of Thomas Reid, Burgess told him on the day
following the Joint Committee decision, viz, April 24, that "it wasn't only turning
down the load that got him, it was what he had done before." 8
Reference has been made, above, to the Multi-State Cement Grievance Joint Com-
mittee decision of April 23. The minutes of that session are in evidence as General
Counsel's Exhibition No. 4 and indicate that Hawkins was accompanied at the hear-
ing by Union Committeeman Munday while Mitchell Transport was represented by
its vice president, Bernie Collins, and by Terminal Manager Burgess. The tribunal
panel consisted of three union and three employer representatives . Chairman of the
union delegates was Lloyd Reisner of Local Union 135 while the employer group
was chairmaned by Tregoning. The minutes state that principals involved in cases
on an individual basis left the room during the decision -making process on cases in
which they were so involved. There is no indication that the minutes were in any
way inaccurate and I conclude that, as the minutes indicate , Tregomng did not sit on
the Hawkins case. I find that the proceedings are not shown to have been anything
other than fair and regular on their face. The result of the deliberation was to uphold
the company action in discharging Hawkins. In so deciding the majority of the
Committee ruled that Hawkins had accepted a load and thereafter refused it and hence
became subject to discharge within the purview of article 7(e) of the uniform rules
and regulations. The minutes indicate that the Committee considered and rejected
contentions on behalf of Hawkins that in other instances other drivers had refused
loads and had not been discharged.
Thereafter on May 31 , as noted above, Hawkins filed the charge in the instant case.
Further, on July 17 Hawkins filed a grievance seeking the reopening of his case
before the Joint Committee on the ground of newly discovered evidence . Pursuant
8 Reid, who by his demeanor while testifying impressed me as more trustworthy than
any other witness in this proceeding , testified concerning a statement of Burgess to him
on the day following the Joint Committee decision and was then asked by the General
Counsel, "what else was said ," his reply being , "I don't recall anything else right at the
time ." General Counsel then commenced what appeared to be a leading question to
which Respondent objected before the question was completed , and then asserted that
General Counsel could not refresh the recollection of his own witness. At this point,
the Examiner inquired as to whether a pretrial statement was in existence and when
informed that there was one, ruled that after first being shown to Respondent ' s counsel,
it could be shown to Reid . This was done and Reid testified that it refreshed his
recollection and that he then recalled the statement quoted above.
Respondent ' s brief refers to the refreshing of Reid's recollection as "unusual procedure
to say the least" and valueless , even under "abnormal rules of evidence ." I rely, at
least in part , on Reid's testimony . See 3 Wigmore, Evidence §§ 758 (3d ed ), et seq ; 4
Jones, Evidence, §§ 964 (5th ed ), et seq.
7 89-73 0-66-v of 152-10
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to this request the Joint Committee considered Hawkins' application , in which he was
supported by union grievance committeemen , at a meeting on September 30. At
this session Tregoning and Burgess represented the Company and Collins acted as
chairman of the employer delegation on the Joint Committee . The Joint Committee,
by majority decision , ruled that there was insufficient evidence to reopen the case
D. Conclusions respecting Hawkins' discharge
Consideration must be given at the outset of Respondent 's primary position in this
matter, namely that the Board should, in accord with the policy enunciated in Spiel-
berg Manufacturing Company, 112 NLRB 1080 , and applied to Joint Committee pro-
ceedings of the type here involved in Denver-Chicago Trucking Company, Inc., 132
NLRB 1416, refuse to consider imposition of its sanctions where arbitration proce-
dures established and resorted to by the parties to a collective -bargaining agreement
have disposed of the discharge by sustaining management action.
The problem is one of accommodating Spielberg to the statutory obligations
imposed upon the Board by Section 10 of the Act . Prior to the Taft-Hartley amend-
ments of 1947, Section 10 provided that the Board's power to prevent persons from
engaging in unfair labor practices listed in Section 8 should be exclusive and not
affected by any other means of adjustment or prevention that has been or may be
established by agreement , code, law, or otherwise . The Taft-Hartley amendments
of 1947 deleted the earlier provision that the Board 's preventive powers should be
"exclusive " but the Conference Report (H. Rept. No. 510 , 80th Cong ., 150 less.)
reveals that the deletion was in deference to new provisions respecting Federal court
injunctions and suits against unions ; the Report also indicates that the retention of
the language relating to the fact that the Board 's powers should not be affected by
other means of adjustment makes it clear that when two remedies exist the Board
remedy should be in addition to and not in lieu of other remedies.
In determining whether or not the Board should withhold its adjudicatory hand
in accordance with the abstention policy enunciated in Spielberg , account must be
taken of the nature of the issues ruled on in the arbitration proceedings . In this
regard the record clearly establishes that the question of whether excessive grievance
filing had anything to do with the discharge of Hawkins was neither alleged nor dis-
cussed in the arbitration proceedings . In fact, the Company asserted at the hearing in
the instant case, as an indication of a lack of merit in the charge, that it was not raised
until sometime after the discharge had been sustained in the arbitration proceedings.9
In Spielberg the issue before the Board was whether or not the company engaged
in an unfair labor practice by refusing to reinstate several strikers following the ter-
mination of a strike . The company based its refusal on grounds of their alleged
misconduct on the picket line during the strike . The issue as to their participation
in such misconduct and the propriety of the sanction invoked was submitted to arbi-
tration panel . A majority ruled that management was justified in refusing reinstate-
ment The Board found that all alleged discriminatees participated , that the pro-
ceedings were fair and regular on their face , and that the decision was not clearly
repugnant to the purposes and policies of the Act . It accordingly dismissed the
complaint in accordance with the desirable objective of encouraging the voluntary
settlement of labor disputes.
As Respondent points out, the Board has regarded the Spielberg policy as applica-
ble to joint committees of the type prevalent in the trucking industry . Denver-
Chicago Trucking Company, Inc., supra . The General Counsel has asserted in his
brief, however , that the requisite standards of fairness and regularity are not met in
the instant case due to Tregoning 's alleged failure to acquaint fellow members of the
Joint Committee with his predisposition to discharge Hawkins because of the Tat-
ter's grievance filing. In view of the absence of indications that the minutes are
incorrect in their notation that interested panel members refrained from discussing
or voting on cases in which they were involved on an individual basis, I reject this
contention of the General Counsel. There is no basis on the record of this case, for
concluding that the standards of fairness and regularity were not met with respect to
the issue presented to the Joint Committee.
But it is of the utmost significance that the issue presented before the Joint Com-
mittee involved solely the allegation that Hawkins was treated unfairly under the
contract standards ; and it was in this connection that consideration was given as to
whether or not Hawkins was accorded treatment different from that accorded in other
0It should be noted , however , that Hawkins ' charge filed May 31, 1963 , preceded the
second session of the Joint Committee on September 30
MITCHELL TRANSPORT, INC. 131
cases of refusals of runs. There was no evidence, argument, or discussion, however,
as to whether or not Hawkins was discharged in truth and in fact because of his
volume of grievance filings.
The present case involves the question as to whether or not Hawkins was dis-
charged for filing grievances. As Respondent concedes, that was in no conceivable
manner presented to or considered by the Joint Committee. Accordingly, we turn
to the merits of the allegations of the complaint. In this respect I accept the General
Counsel's assertion that Ford Motor Company (Sterling Plant, Chassis Parts Division),
131 NLRB 1462, is applicable and Spielberg is not.
The evidence to be considered in determining whether or not it preponderates in
favor of the conclusion that Hawkins was discharged because he engaged in grievance
filing has been set forth fully above It includes undenied evidence that Hawkins
filed several grievances and shortly before his discharge filed written complaint with
the Interstate Commerce Commission concerning the safety of the equipment.
The filing of the grievances herein appears to have been an activity protected under
the Act such that if the discharge were motivated in whole or in part as a reprisal
on account of such filing, the discharge would be an unfair labor practice within the
meaning of Section 8(a)(3). Farmers Union Cooperative Marketing Ass'n, 145
NLRB 1; Red Top Cap & Baggage Co., et al., 145 NLRB 1433. The grievances
appear to have been numerous and forcefully presented.
Although there is no direct evidence that Hawkins was the only or the outstanding
thorn in the side of the Company in this matter, I infer that he was a major irritant,
this appearing from the evidence indicative of strong company displeasure with
Hawkins and the absence of evidence that other drivers filed as many as Hawkins or
were targets of remarks showing resentment as was the case with Hawkins. In this
regard I view the evidence of references to Hawkins as a "troublemaker" as plainly
having reference to his militancy in the grievance field. Also, as I have indicated
above, Burgess and Tregoning were parties to an understanding that, as part of their
concern over Hawkins' troublemaking, Tregoning would instruct Burgess what to do
if Hawkins ever committed a dischargeable and provable offense.
The evidence reveals that Hawkins did commit a dischargeable offense. He arro-
gantly refused a run because, the evidence indicates, he would not take orders from
a woman. The question is whether he was discharged for this offense or because
Tregoning and Burgess had at last got something on him. In determining whether
or not the preponderance of evidence indicates that grievance filing at least in part
entered into the Company's action I rely principally on Reid's testimony attributing to
Burgess the statement, the day after the hearing of the Joint Committee, that it was
not only the turning down of the load that had produced Hawkins' discharge but
what he had previously done. In the circumstances of the case the reference to
what he had previously done plainly refers to grievance activity.
Accordingly, I find that the evidence preponderates in favor of the conclusion that
Hawkins was discharged, at least in part, because of his participation in the pro-
tected activity of grievance filing. This was an unfair labor practice under Section
8(a)(3). See Farmers Union Cooperative and Red Top Cap & Baggage, supra.
The complaint also alleges as unfair labor practices within the scope of Section
8(a)(1) of the Act, threats on the part of Burgess in the period November 1962
through June 1963 directed against employees and threatening discharge for filing
grievances. These threats allegedly were uttered by Burgess at the Mitchell terminal
except for one allegedly uttered on January 17 at Indianapolis.
In this area of the case there is evidence consisting of testimony of several drivers
as to utterances by Burgess. Thus Hawkins asserted that shortly after Burgess became
terminal manager at Mitchell he took Hawkins aside and after referring to the "lot
of grievances" Hawkins had theretofore filed, advised Hawkins to "simmer down"
to avoid trouble. To this Hawkins appears to have rejoined that if Burgess com-
plied with the contract he would file no grievances. This cannot be regarded as a
threat of discharge of the type alleged in the complaint.
Subsequent statements of Burgess appear, however, to be coercive in character.
Thus Reid testified that in October or November Burgess told him that he should
inform Hawkins that the latter was going to file one grievance too many and the
Company would get him. Although the object of this threat was nominally Hawkins,
its inherent capacity for effect on Reid to whom the words were spoken seems obvious.
Edwards testified concerning a discussion with Burgess in January of 1963 in
which, after acknowledging that a reprimand he had issued to Edwards was based
on his belief that Edwards was "in full partners" with Hawkins, Burgess stated to
Edwards that if Hawkins did not quit grievance filing he would be fired and take
others with him. I credit Edwards and find this statement to be a threat of the
type alleged in the complaint.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pruett also related a conversation with Burgess occurring sometime in January of
1963 in which, according to Pruett , Burgess said that if Hawkins did not quit filing
so many grievances and causing so much trouble , he was going to fire him . I credit
Pruett's testimony and find this to be a threat of the type alleged in the complaint
and an unfair labor practice of the type defined in Section 8 (a)( I) of the Act.
There is one final item in this area and that relates to a conversation occurring,
among Burgess, Pruett , and Batchellor in a luncheon meeting in Mitchell sometime
apparently in April 1963. Appraising the evidence concerning any threats uttered
by Burgess at this meeting , it appears too indistinct to warrant a conclusion that it
preponderates in favor of a finding that threats were uttered by Burgess on that
occasion.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Employer set forth in section III, above, and
therein found to constitute unfair labor practices defined in the Act, occurring in
connection with the operations of the Respondent Employer as outlined in section I,
above, have a close , intimate , and substantial relation to trade, traffic , and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
In view of the findings herein that Respondent has engaged in unfair labor prac-
tices as alleged in the complaint , I shall recommend that it be required to cease and
desist therefrom and take certain affirmative action as appears necessary and appro-
priate to effectuate the purpose and policies of the Act. In view of my finding that
Respondent discharged Charles Hawkins because of his participation in concerted
activities I shall recommend that Respondent be required to offer him reinstatement
to his former or a substantially equivalent position and make him whole for loss of
earnings in accordance with the remedial policies outlined in F. W . Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the purview of Section 2(5) of the
Act.
3. By the statements of its terminal manager that discharge could or would be
visited upon employees for filing grievances , Respondent engaged in unfair labor
practices defined in Section 8 (a) (1) of the Act.
4. By discharging its employee Charles Hawkins because he engaged in filing
grievances under the collective-bargaining agreement and complaints as to equipment
with the Interstate Commerce Commission, Respondent engaged in unfair labor prac-
tices defined in Sections 8(a)(3) and 2( 6) and (7) of the Act.
[Recommended Order omitted from publication.]
Sullivan Surplus Sales , Inc. and Local 1687, Retail Clerks Inter-
national Association , AFL-CIO. Case No. 3-CA-3280. April 27,
1965
DECISION AND ORDER
On January 11, 1965, Trial Examiner Owsley Vose issued his Deci-
sion in the above-entitled proceeding finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
152 NLRB No. 12.