Mushroom Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Jun 14, 1963

142 N.L.R.B. 1150 (N.L.R.B. 1963)

1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mushroom Transportation Co., Inc. and Charles Keeler. Case
No. 4-CA-2627. June 14, 1963
DECISION AND ORDER
On March 25, 1963, Trial Examiner Samuel M. Singer issued his
Intermediate Report 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 Intermedi-
ate Report. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and supporting brief, and the General Counsel filed
a brief in support of a portion of the Intermediate Report and excep-
tions as to a portion thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts the Recommended Order of the Trial Examiner.'
I The notice is hereby amended by substituting the following note immediately below
the signature line at the bottom of the notice :
NOTE.-we will notify the above -named employee if presently serving in the Armed
Forces of the United States of his right to be placed upon the extra list for future
employment in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed May 14 , 1962 , by Charles Keeler , an individual , the General
Counsel on October 30, 1962 , issued a complaint alleging that Respondent, in viola-
tion of Section 8 (a) (1) and ( 3) of the Act , discharged and refused to recall or rein-
state Keeler because he had engaged in union activities or other concerted activities
protected by the Act. Respondent, in its answer, denied the commission of the
alleged unfair labor practice.
Pursuant to notice , a hearing was held before Trial Examiner Samuel M . Singer in
Philadelphia , Pennsylvania, on December 19 and 20 , 1962 , and January 7 and 8,
1963. All parties appeared and were afforded full opportunity to be heard and to
examine and cross-examine witnesses . The General Counsel and the Respondent
have filed briefs which have been carefully considered.
Upon the entire record and my observation of the witnesses , I make the following:
142 NLRB No. 123.
MUSHROOM TRANSPORTATION CO., INC. 1151
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, is engaged in the business of providing
and performing common motor carrier services under the regulations of the Inter-
state Commerce Commission. It maintains its principal office in Philadelphia, Penn-
sylvania, and other offices, terminals, and facilities elsewhere in that State and in
other States including New York, New Jersey, Delaware, and Maryland. Respond-
ent's terminal located at G Street and Hunting Park Avenue, Philadelphia, is the
only terminal involved in this proceeding. During the past year, Respondent, in
the course and conduct of its operations at terminals located in Pennsylvania, per-
formed services for customers valued in excess of $100,000, of which, services valued
in excess of $50,000 were performed in States other than the State of Pennsylvania.
Respondent admits, and I find, that at all times material herein, Respondent has
been, and is, engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Highway Truck Drivers and Helpers, Local 107, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (here-
in called the Union or Local 107), is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background; the employment of Charles Keeler
Respondent is a member of an employer association, known as Motor Transport
Labor Relations Inc. (hereafter called MTLR), and it is, by reason of such member-
ship, bound by a collective-bargaining agreement between MTLR and the Union.
Respondent employs between 40 and 45 over-the-road drivers at its Philadelphia
terminal. Some of these drivers are part-time drivers or "extras" who are normally
hired when regular men are away due to leaves of absence, vacation, illness, or other
reasons. H. N. Dougherty, the dispatcher at the terminal, hires the extras from a
list supplied to him by the Union's steward, Milton Goessel, who is also a road
driver for Respondent.' The extras are listed as such on the Company's payroll.
Charles Keeler, the Charging Party, has been an over-the-road driver for 15
years. Prior to July 1961, he worked for a trucking company, known as Royal
where he also was the job steward. Keeler lost his job when Royal merged with
another company, Helms.
In July 1961 Respondent was in need of drivers because some of its drivers were
on vacation or ill. Keeler at that time met Goessel, the Union's shop steward, and
he asked for work. Goessel agreed to submit his name to the Company's dispatcher.
Keeler commenced working for Mushroom on July 12. He made, altogether, 51
trips for the Company to four different towns prior to his last trip on December 15,
1961. He made 3 trips in July, none in August, 15 trips each in September and
October, 14 in November, and 4 trips on December 1, 2, 5, and 15 respectively.
His competence as a driver is not in question.
B. The processing of Keeler's grievance
On Thanksgiving Day, November 23, 1961, Keeler returned from a trip and asked
Goessel, the union steward, whether he should claim holiday pay by making an
appropriate notation on his timecard. Under the collective-bargaining agreement in
effect between Respondent and the Union only "seniority" or regular drivers, as
opposed to part-time drivers or "extras," were entitled to holiday pay. Goessel ad-
vised Keeler not to mark his card for holiday pay, stating that he did not believe
that Keeler was acting wisely in making the claim. Keeler contended that he was
entitled to the holiday pay under the contract and Goessel agreed to discuss the
matter with the Company. Keeler did not mark his timecard.
1 The record shows, and I find, that Dougherty Is a supervisor within the meaning of
Section 2( 11) of the Act. The parties stipulated that he has "authority to employ extra
drivers, using his own independent judgment." He issues directions and instructions
to drivers , has authority to reprimand them if they are not satisfactorily performing
their jobs, and approves the drivers' timecards before payment of wages. Dougherty is
regarded by the drivers as part of management.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goessel first took up the matter of Keeler's entitlement to holiday pay with
Dougherty, the Company's dispatcher whose responsibilities included the approval of
the timecards prior to payment. At Keeler's urging, Goessel then discussed the matter
with Richard W. Cutaiar, the Company's president, who is also in charge of its labor
relations . Keeler insisted on accompanying Goessel to Cutaiar's office, some distance
from the terminal, and to help present his claim but Goessel did not want him along
because he had other business to transact with Cutaiar. Thereupon Keeler followed
Goessel to Cutaiar's office in his own car but remained outside the office.
Cutaiar denied Keeler's claim for holiday pay. Keeler testified that when Goessel
left Cutaiar's office he "seemed upset" and he "berated Keeler by saying "You're a
hot potato. You've got me over a barrel " Keeler replied that he "can't understand
this, I'm just processing a grievance." 2 When Keeler asked Goessel about the out-
come of his claim, the latter replied "We'll have to wait and see."
In January 1962 Keeler took up his claim with Business Agents Baker and O'Lear,
Goessel's superiors. On April 30, Baker, in accordance with the terms of the bargain-
ing agreement in effect, filed a grievance on behalf of Keeler with MTLR.3 In the
interim Baker also discussed Keeler's claim with Cutaiar. A "hearing" was thereafter
held before J. H. Matthews the secretary of MTLR on May 7 4 at which the Company
was represented by Cutaiar and the Union by Bu"iness Agents Baker and Finnegan,
Steward Goessel, and Keeler. Baker, the Union's chief spokesman, took the posi-
tion that under the collective-bargaining agreement, Keeler was a regular or "senior-
ity" employee and as such entitled to the contract benefits, including holiday pay for
Thanksgiving, as he had worked more than 33 days during a 90-day period prior to
Thanksgiving.5 Cutaiar took the position that Keeler was hired as a part-time or
extra employee, that his status never changed, and that he therefore never acquired
the contract benefits applicable to regular or "seniority" employees. Goessel agreed
with Cutaiar that Keeler was engaged as an extra, stating that he supplied his name
to the dispatcher along with the names of others who sought part-time employment.
Goessel also agreed that Keeler's status was never changed. Matthews then rendered
his decision, sustaining the Company's claim and Baker served notice that he was
going to process the grievance through the next step.
Both Baker and Keeler were present at the next stage in the processing of the
grievance which took place on May 29, 1962. Baker testified at the instant hearing
that he now became convinced that Keeler was in fact an extra and not a regular
employee but when the grievance was determined adversely to Keeler, the Union
decided to take the matter up further (to the fifth step in the grievance procedure)
in order to give Keeler the full measure of the grievance procedure.
2 Goessel denied that he had called Keeler a "hot potato" but did not specifically deny
the balance of the conversation with Keeler I credit Keeler's testimony in this instance.
As hereafter noted, Keeler during the period of his employment had discussed with fel-
low drivers the laxity in the enforecement of the Union's bargaining agreement with the
Company It is apparent from the record that Goessel had resented what he considered
to be Keeler's intrusion in his own domain as steward
S The governing bargaining agreement sets up an elaborate procedure for processing
grievances, commencing with the initial handling of the grievance by the union steward
and a company representative through various other stages-including one calling for
attempted adjustment before the secretary of MTLR-ultimately terminating in arbitra-
tion.
4 Matthews who testified before me characterized the MTLR proceedings as "hearings."
These were in effect no more than conferences or meetings in which all interested parties
presented and processed their positions Under the applicable procedure, the secretary's
decision on the merits of the grievance was binding on the employer but not on the
Union. If the Union was dissatisfied, it could invoke the next step in the grievance
procedure which is a proceeding before a joint committee, composed of representatives of
the Union and MTLR. The fifth step-the last one here resorted to which is referred
to infra-is a proceeding before an MTLR officer and the secretary-treasurer of the Union
6 Article V, section 2 of the contract provides • "After an employee has worked for an
Operator at least thirty-three (33) days during any ninety (90) consecutive calendar
days, an employee shall gain seniority status and his seniority date on the seniority list
shall revert to the first day of his ninety (90) day qualification period. No Operator
shall be permitted to deprive a qualified employee of the right to gain seniority status by
any subterfuge or by any refusal to hire such qualified employee when work is available
Any employee hired as a seasonal, casual, or part-time worker shall not become a seniority
employee under these provisions where it has been agreed by Operator and steward that
lie was hired for seasonal, casual, or part-time work ... .
MUSHROOM TRANSPORTATION CO., INC. 1153
On October 23, 1962, Raymond Cohen, secretary-treasurer of the Union met with
the president of MTLR to further discuss Keeler's grievance.6 Cohen now accepted
the Company 's position that Keeler was hired and employed as an extra driver and,
therefore, that he was not entitled to the holiday pay that he had claimed. No
further steps were taken to process the grievance.
C Keeler's activities leading to the Company's refusal to assign him further work
1. Company President Cutaiar's stated reasons for denying additional work to Keeler
As already noted, the last trip assigned to Keeler was on December 15, 1961.
Keeler received no additional work at Respondent thereafter although he requested
work? Company President Cutaiar testified that he had directed the removal of
Keeler's name from the extra list because: (1) He had heard rumors from drivers-
naming Ramaito and Fausey as two such drivers-that Keeler was going to report the
Company for ICC violations, identifying as one such violation the Company's alleged
failure to accord the drivers 8 hours off between trips; 8 and (2) during the latter
part of Keeler's employment, he heard other rumors to the effect that Keeler was
telling the drivers that "they were not getting what they were entitled to" under the
existing bargaining contract with the Union. Cutaiar specifically referred to Keeler's
discussions with employees concerning holiday pay benefits and the claim that the
drivers of another company, Norwalk, were making trips that Respondent's own
men should be making.9 When asked whether he did not in fact first investigate
Keeler after he made his last trip on December 15, Cutaiar replied that he did not as
he had heard enough rumors before that. Cutaiar testified "I heard enough. I
felt that this man I owe nothing to. He's on our register list. If he's going to become
a troublemaker, telling drivers lies about what they are entitled to and not entitled
to, why do I have to keep him? Take him off the list." 10
At the grievance "hearing" held on May 7, 1962 (supra), Cutaiar had advanced
similar reasons for the Company's denial of further employment to Keeler. Cutaiar
there stated that Keeler had "talked with some of the other people and got them
upset. He had done other things to cause trouble for us .. . Cutaiar referred
to a complaint previously filed by another driver with ICC which brought about
an extensive investigation and he stated that he "didn't want anymore trouble." 11
On May 29, 1962, Cutaiar signed a statement which was prepared by the Com-
pany for use in presenting the Company's position at the May 29 grievance meet-
8 Neither Baker nor Keeler were present at this meeting
9 Keeler testified that Dougherty, the dispatcher, declined to send him out on loads
after the first week of December, presumably after December 5, until which time he
worked for Respondent at regular intervals According to Keeler he managed to get a
final day's work on December 15 through the intercession of one of the Union's business
agents Keeler actually worked December 12 and 13 (and also subsequent to December
15) for other companies, having been referred to these jobs by the Union
8 It is apparent fiom the foregoing and other evidence in the record that Keeler had
discussed the matter of the Company's alleged ICC regulation violations with other drivers
8 These drivers apparently worked for other companies during the week and were hired
by the Company as extras during weekends.
to Cutaiar flatly characterized Keeler's remarks about the employees' entitlement to
benefits as "untiue." He was not so definitive about the possible ICC regulation viola-
tions as to which he stated : "I can't say definitely about the ICC I don't think there
are any violations I didn't investigate ... " Keeler denied that he had in fact made
any complaints to the ICC and Cutaiar admitted that no complaints were actually lodged
11 The "minutes" of the May 7 "hearing" (General Counsel 's Exhibit No 3) were ad-
mitted in the record over the objection of Respondent Matthews, secretary of MTLR,
testified that minutes, like the ones here involved , are taken in "every case"; that they
were prepared by his assistant who was present , that, in accordance with usual practice,
they were taken in longhand but not verbatim , and that copies were sent to all parties,
including Respondent and the Union, "so every one will have a record of what took place."
Cutaiar, after examining the minutes at the instant hearing, testified that they were
"substantially correct" except as to one item not here involved Baker, the Union , chief
spokesman , testified to the same effect I now reaffirm my ruling that the document is
admissible as trustworthy and as reflecting the susbtance of what transpired at the
May 7 meeting . Moreover , I note that Cutalar in his testimony affirmed the correctness
of the position taken by him at the May 7 meeting as herein summarized, and that this
position , moreover , accords with that taken by Cutaiar in a statement submitted by
Respondent in connection with the next grievance meeting held May 29 as hereafter
detailed.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Cutaiar in this statement gave the following "examples" of Keeler's activities
which, he said, indicated that Keeler "had been interferring with our steward's
job, telling some of our regular employees that they were not being treated fairly by
the Company:" 12 (1) Keeler told one employee, John Persing, that "he should
be getting some of the extra trips instead of the company using extra men"; (2)
Keeler "advised" Henry Ramaito of his "seniority rights, hourly pay, etc."; (3) he
told Fausey, another regular driver, "when I get my foot into the door at Mush-
room, there will be some changes made"; (4) he told Evans, an extra driver, that
he (Keller) "would never want to work steady for Mushroom"; and (5) he told
Comerford, another extra driver, that "he was going to make Mushroom Transporta-
tion Company put a sidewalk along Hunting Park Avenue." 13 Cutaiar indicated
that he had investigated Keeler and discovered that "he had a reputation for being
a troublemaker" even before he began working for the Company, and feeling that
Keeler was only an extra and that the Company had "no obligation whatever to
Charles Keeler," he directed Keeler's summary removal from the extra list.14
2. Keeler's and other employees' testimony concerning Keeler's activities
Keeler testified in detail as to his discussions with his fellow employees con-
cerning their entitlement to benefits. He stated that some of the employees knew
that he had been the Union's steward on his prior job and the men would fre-
quently request his "opinion of different things that were taking place at Mush-
room," as they met and talked at various diners and coffeeshops near the terminals
and along the highways. Thus, Keeler testified that he discussed with Ramaito, a
regular employee, Ramaito's complaint that it took him a long time to acquire
his status as a regular driver and with it the benefits that go with status under the
bargaining contract, such as holiday pay and vacations.15 Keeler further testified
that he discussed with Persing the Company's practice of giving extra work to
drivers of other companies (such as Norwalk and Davison) instead of using its
own men. He testified that this was also the subject of discussion with another
employee, Walker, who complained about the Norwalk men "bumping in on us."
Keeler also testified that another driver, Reed, had complained that the Company
had him come in from Kennett Square (where he allegedly resided) to pick up.
his truck at Philadelphia while the Company at the same time sent another driver
from Philadelphia to Kennett Square to pick up a load there.
Ramaito, called as a witness for Respondent, denied that he had made any com-
plaints to Keeler, claiming that it was Keeler who had complained about not get-
ting paid enough for certain work. Walker and Reed, also called by Respondent,
denied that the conversations related by Keeler ever took place; Reed explained that
he did not live in Kennett Square but in Wayne, 24 miles away. Respondent did
not call Persing as a witness Fausey, a driver not specifically mentioned by Keeler
but called by Respondent, testified that Keeler told the drivers that they "were not
getting paid enough" for their work. According to Fausey, Keeler told him on
one occasion "I just wanted to get my foot in the door and there are going to be
changes made in Mushroom." 16 Allen Foster, another company witness, did
not testify as to any specific complaints discussed with Keeler 17 but stated that
he did not know anyone that "had a good word" for Keeler and that the drivers
felt that "the man was out to make trouble of some sort."
12 At the hearing Cutaiar testified that in his statement he listed only a few examples,
stating that Keeler's activities "were too numerous" to enumerate in the document.
13 Keeler testified that he was an elected "committeeman in the neighborhood" where
he resides and also where Respondent's terminal is situated ; and that in this capacity
he lodged, at the instance of his constituents, a complaint with the municipal authorities,
alleging the need for a sidewalk adjoinisg the terminal where a bus stop is located.
According to Cutaiar, Respondent thereafter constructed such sidewalk at a cost of $6,000.
1* Cutaiar's statement of May 29, 1962 (General Counsel's Exhibit No. 6) was admitted'
into the record without objection, the parties stipulating that the document had been
submitted by Cutalar to MTLR on behalf of Respondent at the May 9, 1962, grievance
meeting
15 Ramaito was the last man on the regular or seniority roster.
16 Keeler could not "recall" making the last-mentioned remark but admitted talking to
Fausey
11 Foster testified that Keeler called him on another matter, namely to request informa-
tion about extras employed by the Company, presumably after Keeler' s separation, in
order to establish that "he was being discriminated against." Foster stated that he
himself had complained to the union steward about more extra trips.
MUSHROOM TRANSPORTATION CO., INC. 1155
The foregoing summary of employee testimony-whether I accept Keeler's
version of the conversations or that of Respondent's witnesses-reveals that in
all cases, in which conversations admittedly took place, the subject of discussion
concerned wages and conditions of employment and legitimate employee interests.
Company President Cutaiar's own statements and testimony confirm that these
were the matters that engaged the employees' attention. He specifically named
Persing, Ramaito, and Fausey, among those with whom Keeler had discussed em-
ployee matters. In his testimony at the hearing Cutaiar alleged that there were
others "too numerous" to mention. In view of Cutaiar's admissions and the un-
contradicted evidence regarding the subjects of discussion between Keeler and em-
ployees other than Walker and Reed, I do not deem it necessary to specifically
resolve the conflicts in the testimony of Keeler and Walker and Reed.18
Discussion and Conclusions
The uncontradicted evidence shows that Charles Keeler commenced working
for Respondent as a truckdriver on July 12, 1961, and that he last worked for
the Company on December 15, 1961. Respondent concedes that it had denied
further employment to Keeler thereafter. It does not question Keeler's ability
to perform or the availability of work for Keeler. The General Counsel contends
that Keeler was terminated because (1) he processed a grievance to establish his
entitlement to holiday pay as a "regular" employee; and (2) he engaged in other
protected concerted activities consisting of discussions of complaints and grievances
with fellow employees. The General Counsel requests that the remedial order
direct Respondent, among other things, to reinstate Keeler to his former position
as a regular employee. Respondent takes the position (1) that Keeler was engaged
as an "extra" or part-time employee and remained in this status until it removed
his name from the list of extras in December; and (2) that Keeler's name was
not removed from the list either because he processed his grievance or because
he engaged in other protected concerted activities. Respondent claims that Keeler
by his activities sought to advance only his own personal interests and that he
was nothing but a "troublemaker." In the discussion below, I shall first consider
Keeler's status as a regular or extra driver and, then, whether Respondent's denial
of further employment to Keeler was occasioned by his processing his grievance or
by his resort to other protected concerted activities.
a. The status of Keeler's employment
For the reasons stated below, I find, as Respondent contends, that Keeler was
hired as a part-time or extra employee and that he had worked for the Company
in that capacity until his separation on December 15, 1961.
It is clear from the record that Keeler was initially put on the Company's payroll
and hired as an "extra," although it is not clear whether Keeler was specifically told
so in haec verbae.19 The uncontradicted evidence shows that the Company maintains
a list of extras from which it selects individuals to fill in for regular drivers who are
1i If I were required to resolve the conflict, I would be inclined to accept Keeler's
version because it is more inherently probable, although I do have grave doubt that
Keeler's description of the incident with Reed took place as Keeler described it in view
of the fact that Reed did not reside at Kennett Square (Keeler explained that in his
talk with Reed, he gained "the impression he did live in Kennett Square" because Reed
had stated "he lives out of Philadelphia and out north and west.") Moreover, I have
no doubt, as Respondent's witnesses testified, that in most cases in which Keeler dis-
cussed grievances it was Keeler who initiated the discussions. Furthermore, it is ap-
parent that Keeler, who impressed me as a zealous partisan, at times colored his testi-
mony in a way which he thought would best serve his interests as when he added in
almost every recitation of the events that he had suggested to each employee that he
should process his grievance or complaint "through normal channels." At the same time
I got the definite impression that Respondent's witnesses, who were still in the Company's
employ, strived to suppress any display of dissatisfaction with working conditions for
fear that they might hurt their standing with the Company and even with their own
union steward.
19 Keeler at one point flatly denied that he was told he was being hired as an extra but
at another point he stated that he was not "particularly told" and, still at another point,
that he "thought after I had required time in I would " become a regular driver. Simi-
larly Goessel , the Union 's steward , testified at one point that he never specifically told
Keeler that he was being referred as an extra but at another point he stated that he was.
712-548-64-vol. 142-74
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ill, or are on vacation , or are otherwise unavailable . Some of Respondent's drivers
were on vacation in July and others continued in that status even as late as October.
There were in July and for months thereafter employees on extended sick leave 20
Although by no means determinative of the question , the record also shows that
-Keller never in fact filed with Respondent a formal application for employment. On
the other hand , he had filed applications-as he reluctantly admitted-with two com-
panies between July and December , one of them (with Continental Transportation)
as late as November 20 , 1961 . In the interim Keeler worked for other companies in
July, August, and September. In any event, Keeler was carried on the Company's
payroll as an extra , along with other extras. And like other extras, he was usually
paid after each trip out of the terminal itself, rather than on a weekly basis and out of
the Company's general offices as were the regular drivers.
In view of the foregoing and the other evidence in the record , I do not credit
Keeler 's testimony which purports to show that on September 9, 1961 , Dougherty
(the Company 's dispatcher) had requested him to choose , and he did choose, between
regular work at Mushroom and temporary work elsewhere. Dougherty, whom I find
to be a credible witness, testified that no such conversation occurred. The conversa-
tion, if it did occur, would in itself tend to establish that Keeler well understood that
he was, at least prior to September 9 (including the date of hiring), only an extra
.employee.
Accordingly , I find that Keeler was initially engaged as an extra or part-time em-
ployee and that he retained this status until December 15, 1961 , when he was
denied further employment 21
b. Respondent's denial of further employment to Keeler
Having found that Keeler was an extra or part-time employee , the question still
remains whether Respondent's removal of his name from the list of extras was, as the
General Counsel contends , prompted by unlawful motives. It is apparent that Com-
pany President Cutaiar was under the impression that as long as Keeler was only an
extra the Company had "no obligation whatever to Charles Keeler" and it could re-
move him peremptorily . While this position may well have been correct insofar
as Cutaiar 's contractual obligations were concerned , it is not so insofar as his
obligation under the statute is involved . It needs no citation of authority to
demonstrate that Keeler, although an extra , was an employee under the statute and any
-discrimination against him for engaging in protected concerted activities, was a
violation of the Act.
1. The alleged refusal to offer Keeler additional work because of the processing
of his grievance
The processing of a grievance is, of course , a protected concerted activity, and any
discrimination against an employee for engaging in such activity is violative of the
Act. See Bowman Transportation, Inc., 134 NLRB 1419, enfd. in this respect 314
F. 2d 497 (C.A. 5). However on the entire record I can find no substantial support
for the General Counsel 's claim that Respondent had discharged Keeler for this
activity.
As already noted , the collective -bargaining contract in effect between Respondent
and the Union sets up an elaborate machinery for processing grievances, commencing
with initial handling of the complaint by the Union 's steward and a company rep-
resentative through various stages ultimately leading to arbitration . Insofar as it
appears, utilization of the grievance procedure under the contract was a common and
normal practice . There is no evidence of any company hostility or resentment toward
25 Under the contract between Respondent and the Union a sick employee accumulates
seniority and apparently is not subject to replacement for as long as 2 years.
21 The governing collective-bargaining contract specifically provides that an employee
shall not become a regular or senior employee "where it has been agreed by Operator and
steward that he was hired for . . . part -time work " Unless a further agreement is made,
the employee so hired apparently remains a part-time employee. I construe the contract
provision regarding acquisition of seniority status after working 33 days during any
90-day consecutive period (supra, footnote 5) as applicable to those initially hired as
regular and not part-time employees. In any event, this appears to be the basis upon
which the Union ultimately yielded to the Company' s position in the grievance proceed-
ings , namely, that Keeler never acquired seniority or regular status. Under these circum-
stances it matters not that Keeler made as many as 51 trips in the 5-month period of his
employment or that be may have had high earnings during this period.
MUSHROOM TRANSPORTATION CO., INC. 1157
the exercise of this right. On the contrary, the Union, which has processed grievances
on behalf of Respondent's employees, appears to have had amicable relations with
Respondent. The very grievance here involved (Keeler's claim for holiday pay)
.demonstrates full company cooperation in bringing it to resolution through various
stages. There is some evidence in this record that Goessel, the Union's steward, may
have resented some of Keeler's activities (i.e., his discussions of employee complaints)
which he felt was not Keeler's concern. But the record demonstrates that even
Goessel played his proper role in pressing the grievance with management despite his
personal view that it had little or no merit. In any event, I can hardly attribute
the union steward's attitude nad resentment to the Company.22 The Union's business
agents and officials thereafter continued to press the grievance with vigor through fur-
ther stages until they became convinced of the validity of the Company's position.
Keeler in this hearing expressed complete satisfaction with the manner in which
the Union's agents handled his grievance and his relations with the Union have re-
mained amicable. The record shows that the Union has been instrumental in obtain-
ing other employment for Keeler since December and Keeler is presently working
in what appears to be steady employment.
Accordingly, I conclude that the General Counsel failed to show that Respondent's
decision to remove Keeler from the extra list, and thereby denying Keeler further
employment after December 15, 1961, was motivated by Keeler's processing of his
.grievance.
2. Respondent 's refusal to afford Keeler additional work because he engaged in
other protected concerted activities
While, as I found above , Respondent was fully tolerant of Keeler's activity in
processing his'grievance , the record establishes , and I find , that it definitely resented
Keeler's other activities which , I find , were protected concerted activities for mutual
aid and protection . I further find that it was this resentment which motivated
Company President Cutaiar to direct his dispatcher to remove Keeler's name from
the extra list-an action which deprived Keeler of further employment with
Respondent.
Cutaiar's own statements and testimony demonstrate Respondent's motivation.
Cutaiar, as he testified , considered Keeler a "troublemaker " because he was telling
the drivers that "they were not getting what they were entitled to" under the collective-
bargaining agreement and because , according to rumors he heard from drivers, Keeler
was going to report the Company to the ICC for alleged violations , including such
violations as the Company's alleged failure to accord the drivers adequate time off
between trips . The matters as to which Keeler was arousing the drivers , according
to Cutaiar , were holiday pay, vacations , and the Company 's practice of assigning
extra trips to drivers of other companies rather than to its own regular drivers. rt
is plain that Keeler's activities were directly related to the employees' legitimate
interests in terms and conditions of employment . These activities also involved at-
tempts by Keeler to implement the existing collective -bargaining contract in a man-
ner in which he felt it to be applicable to himself and to other drivers . Keeler's
activities therefore fall within the protected ambit of concerted activities as defined
in Section 7 of the Act. Merlyn Bunney, et al., d/b/a Bunney Bros. Construction Co.,
139 NLRB 1516 . See also, Salt River Valley Water Users Association v. N.L.R.B.,
206 F . 2d 325, 328-329 (C.A. 9) and cases cited therein 23 The fact that there might
-2I reject the General Counsel's contention in his brief that "Respondent, by giving
Steward Goessel hiring authority, made him its agent " There is no substantial evidence
that the Company had clothed Goessel with hiring authority. Goessel (lid from time to
time give the names of extras to Dougherty, the company dispatcher, but it was Dougherty,
and not Goessel, that picked and hired the extras.
23 As noted, supra, Cutaiar in his May 29, 1962 , statement also referred to the fact
that Keeler had forced Respondent to install a sidewalk in front of its place of business
I find that this activity of Keeler which he undertook to perform in his capacity as
"committeeman in the neighborhood," a political office, was not, as Respondent suggests
motivated by "maliciousness" and, moreover, it was not a significant factor in Respond-
ent's decision to separate Keeler Cutaiar in his testimony at the instant hearing did
not even refer to this incident. In any event, "In order to supply a basis for inferring
discrimination, it is necessary to show that one reason for the discharge is that the
employee was engaging in protected concerted activity It need not be the only reason
but it is sufficient if it is a substantial reason or motivating reason, despite the fact that
other reasons may exist " N L It B. v. Whi t in Machine Works, 204 F. 2d 883, 885 (C.A 1).
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been no merit to the complaints raised by Keeler is, in itself , of no material
consequence. For, the right of employees to press complaints does not depend on
either the employer's or the Board's appraisal of the merit of the employees' com-
plaint. The "wisdom or unwisdom of the men, their justification or lack of it"
(N.L.R.B. v. Mackay Radio and Telegraph Co., 304 U.S. 333, 334), is irrelevant to
the question of whether employees are engaging in protected concerted activity.
N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 16; Cusano d/bla American
Shuffleboard Co. v. N.L.R.B., 190 F. 2d 898, 902 (C.A. 3). And it does not appear
that the complaints raised by Keeler-whether they be his own or those of others
whom he urged to seek redress-were raised in bad faith, with knowledge that
they were groundless or with an intent to harass the employer. Cf. Northern Motor
Carriers, Inc., 130 NLRB 261, 262.
I have no doubt, as Cutaiar repeatedly emphasized in seeking to justify Keeler's
separation, that Keeler's activities may well have engendered some unrest and
"trouble" among employees who may have felt satisfied with their working condi-
tions. However, "It is obvious that concerted activities which are protected by the
Act often create a disturbance in the sense that they create dissatisfaction with the
status quo. Such a fact without more can hardly justify discharge." Salt River
Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325, 329 (C.A. 9). A strike,
for example, is a typical activity which may bring dissatisfaction among employees
and "trouble" to an employer. But it can hardly be suggested that the strike falls
outside the protection of the Act merely because of such consequences. Hence, the
fact that Keeler may have been a thorn in Respondent's side because of his activities
is not a critical factor.
Nor can I accept Respondent's contentions that Keeler's activities were not "con-
certed" because they involved discussions with employees one at a time; and that
these activities were not for "mutual aid or protection" because Keeler's activities
were in furtherance of his own personal interest to enhance his ambition to become
the terminal steward. As to the first contention, the Board has already ruled that
"an activity may be concerted although it involves only a speaker and a listener."
Salt River Valley Water Users' Assn., 99 NLRB 849, 853, enfd. 206 F. 2d 325, 328
(C A. 9). See also, Root-Carlin, Inc., 92 NLRB 1313, 1314. Such activity is con-
certed because it involves more than one employee. In addition, it is an indispensa-
ble step to induce other employees to make common cause for the correction of
the grievance of a fellow employee and to obtain improved working conditions gen-
erally. Any other result would operate to thwart concerted activity "only a little
beyond the embryonic stage" and "make certain that the seed would never germinate."
N.L.R.B. v. Sam Wallick and Sam K. Schwalm d/b/a Wallick and Schwalm, 198 F.
2d 477, 482 (C.A. 3). Surely, the "broad" protection afforded employees to engage
in concerted activities does not "compel the Board to interpret and apply ... [the
statute] in the niggardly fashion suggested by the respondent" (N.L.R.B. v. Washing-
ton Aluminum Co., 370 U.S. 9, 14).
As to Respondent's contention that Keeler's prime motivation in pursuing his ac-
tivities was to establish himself as the steward at the Company and thereby assure
for himself regular and steady employment at the terminal,24 I find that the factual
record does not support this claim. Apart from the testimony of one employee who
quoted Keeler as stating that he "wanted to get [his] foot in the door and there are
going to be changes" at the Company-a statement equivocal at best-I find nothing
in the record that even intimates that Keeler's activities were moved by pure ambition
for "political" advancement in the union hierarchy. The fact that Keeler considered
himself a regular employee would seem to militate against the conclusion that he
sought to be a steward to secure "regular" status. In my view, a finding that Keeler
resorted to the concerted activities for the purpose of enhancing his own personal
objective for union office would rest upon suspicion and conjecture. In any event,
even if I were to find that such was Keeler's motivation, I do not believe that the
concerted activities would necessarily fall outside the protection of the Act, if the
activities involved the promotion and advancement of employee interests affecting
wages, hours, and terms and conditions of employment. See Joanna Cotton Mills Co.
v. N.L.R B., 176 F. 2d 749, 753 (C.A. 4). The law does not require that activities,
otherwise sheltered, spring from exalted motives. Thus, it is immaterial , for ex-
ample, that the key unionist in a plant is driven to organize employees by hoped-for
=+ The collective -bargaining contract in effect between Respondent and the Union accords
top seniority rights to stewards in case of layoff.
MUSHROOM TRANSPORTATION CO., INC. 1159
prestige and assumption of union leadership rather than by a desire for improved
working conditions 25
Finally, I must reject Respondent's contention that "an important element neces-
sary" to prove a violation on the part of Respondent is union animus which, as Re-
spondent points out , is here lacking . Since my finding of discrimination herein is
predicated not on any conventional union activity by Keeler but , rather, by his par-
ticipation in other concerted activity for mutual aid or protection , it is immaterial
that Respondent has not entertained any union animus in directing Keeler's removal
from the extra list. No "union purpose of relationship" need be present . N.L.R.B.
v. J. I. Case Co., 198 F . 2d 919, 922 (C.A. 8). Cf. N.L.R.B. v. Nu-Car Carriers,
189 F. 2d 756, 760 (C.A. 3), cert . denied, 342 U.S. 919.
For all of the foregoing reasons I conclude that Respondent , by removing Keeler's
name from the extra employees list (and thereby depriving Keeler of further em-
ployment with Respondent as a part-time employee ) because Keeler engaged in
protected concerted activities , interfered with , restrained , and coerced him in the
exercise of his right to engage in such activities and, thereby , violated Section 8 (a) (1)
of the Act26
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I will recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. Having found that Respondent violated Section
8 (a) (1) of the Act in removing Keeler's name from its extra list, and thereby deny-
ing Keeler further employment, because Keeler had engaged in protected concerted
activities under the Act, I will recommend that Respondent restore his name on its
extras list for future employment, in accordance with any nondiscriminatory system
of selection Respondent had employed in the past, and without prejudice to any
rights and privileges he previously enjoyed; and that Respondent make Keeler whole
for any loss of earnings he may have suffered by payment to him of a sum of money
equal to that which he would have earned from the date of the removal of his name
from the extra list to the date of the restoration of his name on that list, less net
earnings during said period. Backpay shall be computed on a quarterly basis and
interest shall be added at the rate of 6 percent per annum. See F. W. Woolworth Co.,
90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. By removing Charles Keeler's name from its extra list, and thereby denying
further employment to Keeler after December 15, 1961, because he had engaged in
protected concerted activities, Respondent has interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the Act
and has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
25 The instant case is therefore distinguishable from cases relied on by Respondent, such
as Joanna Cotton Mills Co. v. N L.R.S., 176 F. 2d 749 (C.A. 4). The decision in that
case turned solely on the fact that the employee was merely seeking "to vent his spleen"
on a supervisor with respect to a matter having no rational connection with wages, hours,
or working conditions (176 F. 2d at 753). Here, as I found, Respondent' s resentment
against Keeler is a direct outgrowth of Keeler's activities regarding Respondent' s policies
on holiday pay, vacations and other terms and conditions of employment. The Board's
holding in Northern Motor Carriers, Inc., 130 NLRB 261, cited by Respondent, is not
inconsistent. N.LR.B. v. Gibbs Corporation, 284 F. 2d 403 (CA. 5), also relied on by
Respondent, is distinguishable on the ground that there the court found that the em-
ployee's action was in no way related to concerted action. The company there discharged
an employee, the plant steward, because he was an "habitual nuisance" in pressing
"grounds personal to him" and making "repeated requests for special treatment" for
himself ; he was not discharged for seeking to advance the benefits of fellow employees
(284 F 2d at 405, 406).
se In view of the foregoing finding I do not deem It necessary to determine whether
Respondent's conduct also constitutes a violation of Section 8(a)(3) of the Act as alleged
in the complaint. Cf Bunney Bros. Construction Company, 139 NLRB 1516, footnote 5.
The remedy to cure the effect of the unfair labor practice (reinstatement and backpay)
which I shall recommend would be the same, whether the violation be of Section 8(a) (1)
or Section 8(a) (3). See N.L R.B. v. Kennametai, 182 F. 2d 817, 818 (C.A. 3). But see,
Gullet Gin Company v. N.L.R.B. 179 F. 2d 499 , 501-502 (C.A. 5).
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case , I recommend that Respondent, Mushroom Transporta-
tion Co., Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing employees in the exercise of their
right to engage in concerted activities for their mutual aid and protection by dis-
criminating in regard to their hire , tenure of employment , or any term or condition
of employment.
(b) In any like or related manner interfering with, restraining , or coercing em-
ployees in the exercise of their right to engage in, or to refrain from engaging in,
any or all the activities specified in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Restore the name of Charles Keeler to its extra list for future employment in
accordance with any nondiscriminatory system of selection Respondent had em-
ployed in the past, and without prejudice to any rights and privileges he previously
enjoyed, and make him whole for any loss of pay he may have suffered , in the manner
set forth in the section entitled "The Remedy."
(b) Upon request make available to the Board and its agents , for examination and
reproduction, all payroll records and other data necessary to analyze and compute
backpay.
(c) Post at its Philadelphia main office and terminal , copies of the attached notice
marked "Appendix." 27 Copies of said notice to be furnished by the Regional Direc-
tor for the Fourth Region shall, after being duly signed by a representative of Re-
spondent , be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not altered , defaced, or covered
by any other material.
(d) Notify the Regional Director for the Fourth Region , in writing , within 20
days from the date of this Intermediate Report and Recommended Order, what steps
the Respondent has taken to comply herewith.28
27In the event that this Recommended Order be adopted by the Board , the words "Pur-
suant to a Decision and Order" shall be substituted for the words , "Pursuant to the
Recommended Order of a Trial Examiner " in the notice In the further event that the
Board's Order be enforced by a decree of a United States Court of Appeals, the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall
be substituted for the words "Pui suant to a Decision and Order "
281n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify said Regional Director in writing within 10 days fiom
the date of this Order what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that.
WE WILL NOT interfere with, restrain, or coerce employees in the exercise of
their rights to engage in concerted activities for their mutual aid and protection,
by discriminating in regard to their hire, tenure of employment , or any term or
condition of employment.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
employees in the exercise of their right to engage in, or refrain from engaging
in, any or all the activities specified in Section 7 of the Act.
WE WILL restore the name of Charles Keeler to our extra list for further
employment in accordance with any nondiscriminatory system of selection we
had employed in the past , and without prejudice to any rights and privileges he
WEST POINT MFG. CO., WELLINGTON MILL DIVISION 1161
previously enjoyed , and we will make him whole for any loss of pay suffered as a-
result of the discrimination against him.
MUSHROOM TRANSPORTATION CO., INC.,
Employer.
Dated------------------- By------------------------------------------
(Representative) (Title)
NoTE.-We will notify Charles Keeler, if presently serving in the Armed Forces
of the United States , of his right to be restored on our extra list, in accordance with
the Selective Service Act after discharge from the Armed Forces.
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, 1700
Bankers Security Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
19107, Telephone No. Pennypacker 5-2612, if they have any questions concerning
this notice or compliance with its provisions.
West Point Manufacturing Company, Wellington Mill Division
and Textile Workers Union of America , AFL-CIO. Case No.
11-CA-2018. Jwne 17, 1963
DECISION AND ORDER
On March 27, 1963, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report 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 Intermediate
Report. Thereafter, the Respondent and the Charging Party filed
exceptions to the Intermediate Report and the Respondent filed a sup-
porting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and finds merit in the Respondent's exceptions. The relevant find-
ings of fact made by the Trial Examiner, as indicated below, are here-
by adopted, but his conclusions and recommendations are adopted only
to the extent consistent with our decision herein.
The complaint alleges, and the answer denies, that Hugh Rodgers,
"personnel assistant" of Respondent, is a supervisor and agent of Re-
1 The Board has treated the Charging Party's letter of April 19 , 1963, as exceptions to
the Intermediate Report. In view of the fact that the complaint herein is dismissed,
we hereby deny the Charging Party's request for an Order broader than that recom-
mended by the Trial Examiner . Its request for oral argument , contained in the April 19
letter, Is also denied , as, in our opinion , the record , exceptions, and brief adequately
present the positions of the parties.
142 NLRB No. 126.