Pacific Intermountain Express Co.

National Labor Relations Board - Board Decisions

Dec 13, 1974

215 N.L.R.B. 588 (N.L.R.B. 1974)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacific Intermountain Express Co. and Charles Rich-
ard Nixon
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 497
and Charles Richard Nixon. Cases 8-CA-8106 and
8-CB-2268
December 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
Local 497, attempted to cause Respondent Employer, herein
referred to as PIE, to terminate the employment of Nixon and
that PIE in collaboration with or at the insistence of Local
497 terminated Nixon because Nixon opposed ratification of
a collective-bargaining agreement negotiated between Re-
spondents and was instrumental in a complaint over the con-
duct of Local 497's business agent made to a superior union
officer The complaint further alleges that Local 497 failed
and refused to afford Nixon fair representation in the process-
ing of grievances. PIE and Local 497 have filed answers
denying the commission of any unfair labor practices.
On June 10 and 11, 1974, a hearing was held before me at
Cleveland, Ohio, at the conclusion of which oral argument
was waived, and the parties were given leave to file briefs.
Briefs have been received from all parties.
On August 21, 1974, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter, each of the Respondents filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent Pacific Intermountain Express Co., Rich-
field, Ohio, its officers, agents, successors, and assigns,
and Respondent International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Local 487, its officers, representatives, and
agents, shall take the action set forth in the said recom-
mended Order.
i The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
DAVID S DAVIDSON, Administrative Law Judge: Pursuant
to charges filed by Charles Richard Nixon, an individual, on
January 7, 1974, a consolidated complaint issued on April 30,
1974, alleging that Respondent Union, herein referred to as
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE EMPLOYER
PIE, a Nevada corporation, is engaged in interstate trans-
portation of goods and materials by trucks. Its principal office
is in Oakland, California, and it has terminal facilities at
various locations in the United States including Richfield,
Ohio, the sole facility involved in this proceeding. Its annual
gross revenue from interstate transportation of goods exceeds
$50,000. The parties concede, and I find, that PIE is an
employer engaged in commerce within the meaning of the
Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
11 THE LABOR ORGANIZATION INVOLVED
Local 497 is a labor organization within the meaning of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
For approximately 9 years, Local 497 has represented cer-
tain clerical employees at PIE's Richfield, Ohio, facility,
commonly referred to as the Akron terminal , and has had a
series of collective-bargaining agreements with PIE covering
those employees. The Akron terminal is headquarters for
what is known as the Akron district which consists of 10
terminals in Ohio and Pennsylvania. The Akron office em-
ployees handle rating and billing functions for all the Akron
district.
Charles Richard Nixon, referred to as Dick Nixon by his
fellow employees, started to work at the Akron terminal in
1959 and worked there, with one short break in service, until
November 28, 1973, when he was discharged. At the time of
his discharge and for a considerable period before that, Nixon
was a senior rate clerk As such, Nixon received bills of
lading, applied the correct charges to. them, and gave them
to a billing clerk to be billed and processed Nixon also took
telephone calls from customers concerning rates and handled
customer complaints over rates
215 NLRB No. 113
PACIFIC INTERMOUNTAIN EXPRESS 589
Around June 1973, Nixon became Local 497 job steward
for the PIE clerical unit and served in that capacity until his
discharge
In 1971, when Nixon was not a steward, he was suspended
for 7 days for participating in an unauthorized work stop-
page. At that time , Nixon and a number of other night shift
employees refused to cross an unauthorized picket line placed
at the terminal by another Teamsters Local representing ga-
rage and dockworkers. Nixon did not participate in the pick-
eting, but he and a number of others were suspended for
refusing to cross the picket line.
2. The 1973 negotiations
On June 30, 1973,' the collective-bargaining agreement
between PIE and Local 497 expired, and negotiations com-
menced. By oral agreement of the parties the terms of the
expired agreement were continued in full force and effect
without any hiatus pending execution of a new agreement. A
single negotiating meeting was held between management
representatives and a Local 497 committee consisting of Busi-
ness Agent and Secretary-Treasurer James Wykle, and em-
ployees Nixon, Bob McCartney, and Karen Newport. Wykle
was in charge of the negotiations, but Nixon presented em-
ployee proposals and did most of the talking in support of
them.
Following the single negotiating meeting, a meeting of the
bargaining unit employees was held at which Wykle advised
the employees of the benefits that PIE was willing to offer,
and told them that they would receive everything the Interna-
tional had received and that it was a good contract. Wykle
then turned the floor over to Nixon who spoke against signing
the contract offered by PIE. The principal basis of Nixon's
opposition was that 3 years earlier the employees had agreed
to a contract before negotiations in other parts of the country
were concluded, that he believed they were promised that any
further wage incyeases gained elsewhere would be given them,
and that a 75-cent additional increase gained elsewhere was
not given the PIE employees.
Following Nixon's statement in opposition, the employees
present voted unanimously to reject the PIE offer and to seek
authorization from Teamsters Joint Council No. 41 for a
strike. Thereafter, strike authorization was refused, no strike
occurred, and no further negotiations were held. The em-
ployees continued to work under the expired contract, and
Wykle from time to time urged employees individually to
accept the PIE offer.
3 The alleged work stoppage
At the end of each month, PIE attempts to complete all its
billing for shipments made during the month so that it may
have an accurate measure of its monthly business September
29 and 30, 1973, fell on a Saturday and Sunday, and the office
clerical employees were aware that weekend work would be
necessary to achieve PIE's objective of completing all Sep-
tember billing before the end of the month.
Normally PIE seeks volunteers to work overtime and per-
form necessary weekend clerical work. Each week a sheet is
All dates which appear hereafter were in 1973 , unless otherwise stated
posted for employees to sign if they wish to perform such
work In the event that not enough employees volunteer for
such work, PIE has the right under its contract to require
employees to work in inverse order of seniority
Approximately a week before the weekend of September 29
and 30, Larry Zvara, who was then a rate clerk, approached
Nixon and suggested that it would be a good idea if office
employees did not sign up for work on the following weekend
Zvara proposed such action as a means of getting doubletime
pay for Sunday work and getting something else through
negotiations. Nixon's initial reaction was negative.' It is dis-
puted whether Nixon ever subsequently joined with Zvara
and others in promoting a slowdown.' According to Zvara,
Nixon subsequently reraised the matter, and the outcome of
their discussion was a decision to move forward with the
plan. According to Nixon, he never agreed to promote a
slowdown and did not participate in it. There is a considera-
ble amount of disputed evidence as to whether a slowdown
occurred and, if so, whether Nixon took an active part in it.
Some office clerical employees did sign up and work as
dock clerks and billing clerks on September 29 and 30, but
Nixon and Zvara, who were the only two full-time rate clerks
at the terminal, did not sign up, nor did any but one of the
casual rate clerks who occasionally worked weekend over-
time for Respondent ° In order to accomplish its objective
of having all billing completed by midnight September 30,
Respondent at extra expense brought five supervisors in from
other locations to perform rating functions over the weekend,
and Tim Wood, a casual employee, worked and did some
rating work on one of the two weekend days. PIE did not
attempt to require Nixon, Zvara, or any other of its regular
clerical employees to work on the weekend.
4. The suspension of Nixon
On October 8, Nixon was called into the terminal office
and, with Wykle present, Terminal Manager Roberts charged
Nixon with being responsible for a work stoppage on Septem-
ber 29 and 30, thereby violating the contract Nixon asked
Roberts to be more specific as to his involvement in the work
stoppage and questioned whether in fact there had been one.
Roberts referred to a conversation between employee Gladys
Dougherty and Nixon on September 29, saying that Nixon
had approached Dougherty in regard to the slowdown.
Nixon said he was being falsely accused and that he had no
part in it. Nixon was told that he was being suspended for 7
days and was sent a letter to that effect, dated October 9,
1973, and signed by William J Quine, district office supervi-
sor, who was Nixon's immediate superior. A copy of this
letter was sent to Business Agent Wykle. This letter read-
2 Zvara and Nixon both so testified
3 Witnesses and parties to this proceeding uniformly used the term "slow-
down" to describe the refusal of employees to sign up for weekend overtime
This usage will be followed herein for convenience
Max Heeman, Joe Fazek, and Carl Kollert were casual rate clerks
Heeman and Kollert informed management representatives that they would
be unable to work prior to the weekend Fazek testified that he believed he
did work, but Fazek appeared confused as to actual dates, and his testimony
indicates he was referring to a later weekend I credit other testimony that
he did not work
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This letter is to confirm the action taken against you by
Pacific Intermountain Express at a hearing held on your
behalf on October 8, 1973, at the P I.E. Richfield Termi-
nal. Present were Mr. Al Roberts, Terminal Manager,
Mr. Bill Quine, District Office Supervisor, Mr James
Wykle, Business Agent Local #497, and yourself.
It has been determined that you be suspended for a
period of one week (7 days) effective October 8th, 1973,
through October 15th, 1973, and return to your normal
shift at 1630 on October 16th, 1973.
This action is being taken under violation of Article
XVIII of the labor agreement between Teamsters Cleri-
cal Union #497 and Pacific Intermountain Express,
from which I quote the second paragraph:
"Job stewards and alternates have no authority to take
strike action, or any other action interrupting the Em-
ployer's business, except as authorized by official ac-
tion of the Local Union. The Employer recognizes
these limitations upon the authority of job stewards
and their alternates, and shall not hold the Union
liable for any unauthorized acts. The Employer in so
recognizing such limitations shall have the authority
to impose proper discipline, including discharge, in
the event the shop steward has taken unauthorized
strike action, slowdown or work stoppage in violation
of this Agreement."
Nixon did not work his next 3 scheduled workdays, but on
October 12, Quine went to District Manager Donald Mayor-
as and told Mayoras that he was having difficulty getting
rate clerks and had a great deal of rating to be done Quine
asked if Nixon could be recalled, and Mayoras told Quine
that he could. Quine called Nixon and told him he was
needed at the office because of an overload of work and that
they were reducing his suspension from 7 days to 3 days.
Quine also prepared a letter dated October 12 which was
given to Nixon upon his return to work on October 12 A
copy was sent to Wykle. This letter read:
This letter is to reference my letter of October 9th, 1973,
Certified # 126871, in which you were suspended for a
period of one week (7 days) from October 8th, 1973,
through October 15th, 1973.
I am amending the second paragraph of that letter to
read the following:
"It has been determined that you be suspended for a
period of three (3) days, effective October 9th, 1973,
through October 11, 1973."
Per our phone conversation at 11:55 a.m October 12th,
1973, you were informed of this change and are expected
to report for the 1630 shift October 12th, 1973, and
honor the sign up sheet for which you signed for work
Saturday, October 13th, and Sunday, October 14th,
1973.
The first three steps of the grievance procedure set forth in
the contract were either bypassed or deemed as having been
followed as a result of the October 8 meeting with Roberts
The fourth step of the grievance procedure calls for presenta-
tion to an area grievance committee consisting of an equal
number of employer representatives and union members from
various trucking companies under contract with Local 497
other than the company directly involved. In the event a
majority of the committee votes to settle a dispute, that deci-
sion is final and binding on both parties and there is no right
of further appeal. In case of a deadlock in this committee, a
grievance may be taken to arbitration.
No immediate action was taken with respect to Nixon's
grievance, but a hearing before the area grievance committee
was set for November 30
5. Nixon 's meeting with management
When Nixon returned from suspension, he requested a
meeting with PIE Eastern Region Vice President Sywassink
about the contract. A meeting was arranged and held on
October 17. In the interim, Roberts had left as terminal
manager, and Michael Schwartz transferred from Cleveland
and became manager of the Akron terminal on October 17
The meeting was attended by Sywassink and Schwartz for
PIE and by Nixon, McCartney, Newport, and Zvara for
Local 497. Wykle was not present and was not invited or
informed of the meeting.' Nixon told Sywassink that they
were there to discuss the contract, that all other means of
settlement were exhausted, and that he wanted Sywassink to
relate the employees' feelings to Helvey, the PIE labor rela-'
tions manager, in Denver. Sywassink told Nixon that he was
not there to discuss a contract and that as far as he was
concerned the employees had received all the benefits they
were going to get. Sywassink in effect rejected Nixon's re-
quest.
0
6. The employees' complaint to the Teamsters
In late October or early November, Nixon met with Wykle
and James Cross, attorney for Local 497. They told Nixon
that they felt there was no further action that the employees
could take on the contract. Nixon told them he had been
encouraged by employees to send a letter to Frank Fitzsim-
mons, president of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
and asked for permission to write a letter to Fitzsimmons
Wykle and Cross agreed, but Cross suggested that Nixon
leave Wykle's name out of the letter because it would dis-
credit him.
Following this meeting on November 6, Nixon sent Fitz-
simmons the following letter, signed by 22 employees includ-
ing Nixon-
Due to the extreme dissatisfaction with our local union
representation and apparent exhaustion of all other al-
In the meantime on October 11, Nixon had filed a written
grievance protesting his suspension as without just cause and
lacking in supporting evidence.
5 Nixon testified that it was his purpose to have Sywassink serve as' an
intermediary between the employees and PIE officials to renew negotiations
and that he intended to including Wykle in the negotiations but didn't think
it necessary to include him in the meeting
PACIFIC INTERMOUNTAIN EXPRESS 591
ternatives , we are soliciting your assistance in the inves-
tigation of events prompting the writing of this letter.
Teamsters in Chicago had not yet settled their demand
for an additional seventy-five cents in wages, when we
were negotiating our 1970 contract . During the negotia-
tions, it was suggested a clause be added to our contract
providing our members with any benefits derived
through the Chicago demands . Mr. James Wykle (Secre-
tary-Treasurer and Business Agent of Teamsters Local
#497) immediately replied to our request with the fol-
lowing statement: "I have it from a very good source,
Chicago will not get the additional increase". This sub-
ject was not discussed again during the negotiations.
When the negotiations ended , our committee requested
their presence at the summation of our agreement be-
tween Mr . Wykle and Mr. H. A . Helvey (Labor Rela-
tions Representative for Pacific Intermountain Express).
Mr. Wykle agreed to our request , but held the summa-
tion the following day in the absents [sic] of our commit-
tee
Mr. Wykle then called a meeting of our members to vote
on the ratification of our tentative agreement. Prior to
the voting, Mr. Wykle again assured the members that
he had it from a good source, Chicago would not receive
any additional increase in wages, but in the event they
should, Mr Helvey had given his word that our mem-
bers would receive proportionate increases. Our agree-
ment was ratified under this assumption. We did not
receive the seventy-five cents as promised, and Mr Hel-
vey denied any knowledge of any agreement between
Mr. Wykle and himself.
We have now negotiated our 1973 contract, and once
again we were refused the seventy-five cents lost in our
last contract. This, and the refusal of other reasonable
benefits ehanced [sic] a unanimous vote for a sanctioned
strike. Our strike sanction was denied
We then asked Mr. Wykle to arrange a meeting with our
committee and Mr. William Pressor, and requested this
meeting to be held prior to the signing of our contract.
Although Mr. Pressor has agreed to meet with our com-
mittee, it has been four months since our contract has
expired, and numerous requests for a more specific date
and time have proven fruitless. It now appears we may
never accomplish this meeting.
These are but a few examples of the unorthodox methods
used to persuade us to accept a contract with only a
minimum in benefits.
Mr. Fitzsimmons, with the incredible cost of living in-
creases now confronting us, it is imperative we be com-
petitive with other workers across the nation. Trusting
you will respect the importance we are placing on this
situation, we hope to gain your support in upgrading our
local representation
Understanding this letter may seem somewhat confusing
and not wishing to complicate things more, or consume
more of your valuable time, we are requesting that you
send a representative to investigate this matter. If you
should see fit to do so, information can be obtained
through our Union Steward, Mr. Charles R. Nixon, 682
Reed Avenue, Akron, Ohio 44306, residence telephone
number 773-1155.
7. The solicitation of an affidavit from Gladys Dougherty
Around November 1, Larry Zvara became office manager
replacing Quine. Shortly thereafter Zvara approached em-
ployee Gladys Dougherty and asked her for a statement to
the effect that Nixon had talked to her and told her not to
work on the September 29 and 30 weekend. Dougherty was
reluctant to give such a statement, and Zvara repeated his
request to her. In mid-November, Dougherty found that she
couldn't work because of emotional strain6 and took a cou-
ple of days off. On November 19, while she was off, Zvara
called and asked if he could come to her house to see her. She
told Zvara that she was planning to return to work that night,
but Zvara said that his visit had a different purpose. That
afternoon Zvara and Schwartz arrived at her house, bringing
with them a prepared statement which they asked her to sign.
The prepared statement said that Nixon had approached
Dougherty and asked her not to work on the weekend of
September 29 and 30. Dougherty asserted that the statement
was not true and refused to sign it. Schwartz and Zvara said
they would make up a new statement for her to sign and they
discussed what should go in it.
Dougherty told them that before the weekend of Septem-
ber 29 and 30 she had been approached by an employee other
than Nixon who told her that the employees were going to
try not to work over the weekend in the hope of getting
something done about the contract 7 Dougherty did not sign
up for weekend overtime apparently because of uncertainty.
over whether she would work. However, later she told Acting
Office Manager Dave Studer that she would work on Satur-
day. When Dougherty reported for work at midnight Satur-
day, Nixon, who was still at the terminal working overtime
on his Friday shift told her he had not seen her name on the
sign-up sheet. She said she had called in to state her availabil-
ity for weekend work. Nixon then said something to the effect
that people should sign up on the sheet and should not call
in and have the boss sign for them. Dougherty told Nixon not
to get smart.
After Dougherty recounted these facts, Zvara typed the
following statement on a typewriter which Dougherty had at
her house:
AFFIDAVIT
I, Gladys I Dougherty, was approached by one of my
co-workers and advised none of the office employees of
PIE at Richfield, Ohio, were going to work in a protest
of the Company not granting double time pay for Sun-
days and in order to get the pending contract wrapped
up.
6 Dougherty' s husband had recently died
7 Dougherty identified Charles Rice as the employee who spoke to her
Rice, who admitted speaking to many employees, denied that he spoke to
Dougherty about the slowdown
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I did not follow this advice but in fact did come to
work on that Saturday , September 29
Subsequently I was approached by Mr. Richard
Nixon , Union Steward , and asked why I worked on that
weekend . To my knowledge this is the only weekend I
have ever worked that I was questioned by the steward
as to why I worked
When Dougherty read the new statement , she protested
that the last paragraph was still not true, and she still did not
want to sign it Schwartz told her , "that is close enough. You
are not implicating Nixon that he approached you. A co-
worker approached you, so it clears Nixon ." Dougherty then
signed the affidavit.
Although the affidavit contained a jurat and Zvara was a
notary, the statement was not notarized by Zvara at Dough-
erty's house, but was taken by Zvara to John Baker , another
notary who is also an employee of PIE, and Baker then signed
his name as Notary Public.'
8. The termination of Nixon
On November 28, when Nixon reported for work,
Schwartz called him to his office Schwartz told Nixon that
due to an extensive investigation into his involvement in the
September 29 and 30 slowdown , PIE had decided to change
his suspension to a discharge . Nixon asked Schwartz to be
more specific as to the charges , but Schwartz only identified
the article of the contract that Nixon was charged with violat-
ing and said that Nixon knew of or was responsible for the
slowdown . Nixon again asked Schwartz to be more specific,
and Schwartz replied that without a union representative
present he did not feel that he was required to tell him any
more . Schwartz gave Nixon a letter dated November 28,
which showed that a copy was sent to Wykle. Nixon asked
Schwartz if Wykle had been notified . Schwartz said that if he
hadn ' t he would receive a copy of the letter and would know
of the discharge immediately . The letter stated.
With reference to your suspension from October 9th,
1973, through October 11th, 1973, for violation of Arti-
cle XVIII of the Labor Agreement between Teamsters
Clerical Union #497 and Pacific Intermountain Ex-
press
The Company has extensively investigated the circum-
stances surrounding your participation in the activities
of September 29th and September 30th, 1973. It has been
confirmed that you planned and caused a severe work
slowdown in direct violation of the Contract , and as a
8 These findings as to the circumstances of the taking of Dougherty's
affidavit are based on the testimony of Dougherty which I have credited
Although Schwartz and Zvara both testified, only Schwartz was asked about
the affidavit According to Schwartz , after Dougherty refused to sign the
first draft affidavit, she dictated a new affidavit which she signed after a
couple of questions , which he answered Schwartz differed with Dougherty
as to other details surrounding the visit to her house With respect to the
notarization , Schwartz explained that he originally intended to have Zvara
notarize the statement but decided that as Zvara was instrumental in getting
the statement , it would be better if someone else notarized it For reasons
set forth below , I have not credited Schwartz' testimony with respect to the
affidavit
result , the Company is amending its previous action
against you to a discharge , effective immediately.
9. Nixon 's grievance over his discharge
By letter dated November 30, Nixon grieved his discharge,
repeating the contentions made in his earlier grievance The
two grievances were combined for presentation to the area
grievance committee on November 30, the date originally set
for a hearing on Nixon 's initial grievance . According to
Nixon , he received one telephone call from Wykle , in which
Wykle expressed his sympathy , between the time Nixon
learned of his discharge and the grievance meeting, and Wy-
kle did not otherwise talk or meet with him in preparation for
the grievance meeting.
10. The grievance meeting
At the area grievance committee meeting Wykle and
Nixon were present for Local 497, and Schwartz was present
for PIE .' At the outset , Nixon asked Committee Chairman
Goff, an employer representative , for permission to have his
attorney present and to tape record the proceedings. Both
requests were denied . Nixon asked permission to have Karen
Newport, who was present at the hearing site with several
other employees , sit in as his representative or steward. Goff
told Nixon that Wykle was his representative , and Wykle said
Nixon was still steward until there was a decision on his
discharge
Goff received and read the papers relating to the grievance,
and it was agreed that the Company would present its case,
first. Schwartz read testimony indicating that Nixon was re-
sponsible for the September 29 and 30 slowdown and pre-
sented the affidavit he had obtained from Mrs. Dougherty on
November 19, as well as an affidavit signed by Zvara which
stated that Nixon had agreed with Zvara a week before Sep-
tember 29 and 30 to contact numerous employees within the
office to cause a work slowdown
Wykle then read a statement on Nixon 's behalf, and Nixon
was permitted to speak. Nixon objected to the fact that he was
originally suspended for 3 days only to be discharged 2 days
before the hearing He said that he was handicapped in his
preparation and felt there was extreme injustice in handling
the entire matter.
Either at this point or earlier in the hearing a letter from
Schwartz to Wykle was read . The letter bore the date October
13, 1973, and indicated that like other letters sent by PIE
which were introduced in evidence in this proceeding, it was
sent by certified mail. The letter did not show that any copy
was sent to Nixon, and was signed by Freight Operations
Supervisor Richard D . Platt . It stated.
With regard to our letter to Charles R. Nixon, dated
October 12th, 1973, Mr . Nixon 's suspension was re-
duced to three (3) days to limit Company liability while
further investigating the circumstances of the case.
9 These findings are based on the testimony of Nixon , whose version of
the meeting was more comprehensive than that of any other witness and was
not contradicted in any material respect Wykle's version differs principally
in adjectives used by him to describe the character of his participation, i e ,
that he made a "rather long drawn out statement " in Nixon' s behalf and
represented him "vigorously "
PACIFIC INTERMOUNTAIN EXPRESS 593
This is to advise you that the Company considers Mr.
Nixon's apparent activities a most serious violation of
the contract. We are continuing to investigate carefully
all the facts in the case. Should we verify Mr. Nixon's
involvement, we will amend our action at a later date
and take more severe disciplinary measures.
In fact, this letter was received by Wykle on November 28,
the day on which Nixon was discharged, and the evidence
shows that it was typed and mailed a day or two earlier.10
When the letter was read at the hearing, Nixon expressed
surprise and asked if his rights had not been violated in that
he had not received the letter earlier and was not aware of it.
Goff said it was not necessary to include him in this corre-
spondence. Nixon turned to Wykle and asked him why he
was not advised of the letter or given a copy Wykle replied
by asking, "Oh, didn't I give you a copy?"
Nixon then presented affidavits from several employees
indicating that they had been contacted and asked by Zvara
not to work on September 29 and 30. Nixon also presented
an affidavit signed by Dougherty in which she denied the
second paragraph of the affidavit she gave to Schwartz and
supplied her corrected version of that paragraph.
After the affidavits were read by the committee, Goff asked
Nixon about his involvement in the contract negotiations
Nixon said he wasn't prepared to discuss the contract because
he didn't think it would come up. Wykle then spoke and said
they had received benefits comparable to those received by
the International and the subject was dropped.
Goff asked if anyone wanted to call witnesses to give live
testimony. Although several employees had appeared and
were outside the hearing room at Nixon's request, he stated
that he was content to rely on his affidavits, and no witnesses
were called.
At the conclusion of the hearing, Goff asked those who
were not members to leave the room and indicated that the
committee would have an answer shortly. A little while later,
Goff came out and told Wykle that there would be a decision
in his office in 10 days Thereafter, the area grievance com-
mittee unanimously rejected Nixon's grievances, and Nixon
was so notified by Wykle. Nixon asked Wykle to submit his
discharge to arbitration, and Wykle replied that because of
the provisions of the contract this request was denied.
11 The alleged admission attributed to Platt
Sometime after Nixon's discharge, Freight Operations
Supervisor Platt asked employee Betty Staats whether she
heard if Nixon had taken his discharge to the NLRB. She
replied negatively and asked if Platt knew why Nixon was
discharged. Platt said that it was because Nixon had caused
some trouble." According to Platt, she asserted that she felt
Nixon was discharged because he was the only one who
worked in the office who stood up to the Company Platt
testified that the conversation ended at the point Staats testi-
fied that she asked Platt whether Platt meant that Nixon
caused trouble because he stood up for the employees as
10 Schwartz's secretary testified that she typed the October 13 date be-
cause that was the date on the handwritten draft which she copied and which
was given to her on the day that she typed it
11 To this point, the versions of Platt and Staats are in basic agreement
steward According to Staats, Platt replied, "No, he was a
troublemaker for someone outside of the Company." She
testified that she asked if it was Wykle and Platt replied that
he was not saying and left.
12. Manager Schwartz' explanation for Nixon's discharge
and the "October 13" letter
At the time of Nixon's original suspension, Terminal
Manager Roberts was on vacation. Roberts finished his vaca-
tion and resigned. During an unspecified interim period
preceding Schwartz' arrival at the Akron terminal, Freight
Operations Supervisor Platt was in charge of the terminal
According to Schwartz, within 2 days after Schwartz
became terminal manager, Platt spoke to him about Nixon.
Platt told him that there had been a refusal to work on the
part of the entire rate department for which Roberts and
Quine felt that Nixon was responsible. Platt informed
Schwartz that Nixon had been suspended, that his grievance
would probably be heard at the end of November, and that
Schwartz would probably want to review the case because it
would be his responsibility to present management's side.
According to Schwartz, Platt also said that he had looked
into the matter and that personnally he felt that Nixon's
actions warranted discharge or at the very least a more
thorough investigation than had then occurred. Schwartz
told Platt that he would look into it but didn't have time to
get into it at that point. Platt gave Schwartz the Nixon file
containing relevant papers at which Schwartz did not look at
at that time, but which he put in his desk with the intention
of reviewing it as soon as more important duties were taken
care of.
Schwartz testified that within about a week he looked at
Nixon's file and that, at about the same time in a phone
conversation with Wykle about another matter, Schwartz
mentioned to Wykle that he was looking further into the
Nixon case, that he felt that the suspension was not severe
enough, and that if they could determine that there was more
hard evidence they might amend their action later. According
to Schwartz, Wykle protested that he did not think it was
legal under the contract, to which Schwartz replied that there
was ample precedent for amending a previous disciplinary
action until it was heard by the area grievance committee to
make it either more or less severe. Schwartz testified that
there was further conversation back and forth about the
precedent for amending disciplinary action. According to
Schwartz, he told Wykle he would send him a letter stating
that the investigation was continuing, and Wykle may have
asked him at that time to send him such a letter, but Schwartz
did not remember specifically Schwartz spoke to Wykie
fairly regularly thereafter by telephone and in person about
various problems. Schwartz never informed Nixon that fur-
ther disciplinary action against him was being considered.
Initially, Schwartz testified that after he spoke to Wykle he
asked Platt to draft the letter. However, a few minutes later,
also on direct examination , Schwartz described that tes-
timony as "absolutely in error," and testified that, "In fact,
Mr. Platt had drafted a letter which he pointed out to me
when he gave me Nixon's file." However, Schwartz did not
have the letter sent at that time.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schwartz testified further that when he looked at the file
about a week after Platt gave it to him he discovered a record
of Nixon's previous suspension for a "similar offense,"12 and
the handwritten draft of Platt's letter. Again, Schwartz took
no action with respect to the letter at that time. According
to Schwartz, he intended to have the letter sent but but forgot.
Schwartz testified further that the letter "stayed in the file
until I had an opportunity later on, as I previously testified,
to get in my personal investigation in depth." His testimony
continued.
Q And then what did you do with regard to this letter
if anything?
A. Well, when I picked up the file and determined
through our investigation that people hadn't worked,
that statements had already been given to that effect, and
there was definite cause, I had assumed that the letter
had been sent
I know I had already spoke to Mr. Wykle and advised
him that we were, and I was surprised to find the letter
of the draft still here. I gave it to my secretary and told
her to send it out.
According to Schwartz, it was November 26 when he gave
the letter to his secretary, and it was typed directly from the
handwritten draft which Platt had previously prepared.
Schwartz testified that he had assumed his secretary would
correct the date on it and was not cognizant that it went out
with an October 13 date on it He also testified that the letter
was a courtesy not required by contract and that he didn't get
too concerned about it. Schwartz testified that he did not
review the language of the letter before it went out, but that
he had read it and approved of it when Platt handed him the
file on his first or second day at the terminal, and when he
rediscovered it later he gave his secretary the file and told her
it should have been sent out.
Schwartz testified that he made a thorough investigation in
an attempt to recreate what took place on the weekend of
September 29 and 30 by going over sign-up sheets to deter-
mine who had failed to work among the regular and casuals
and by developing the patterns of work frequency on other
weekends of those who did not work on that weekend.
At around the same time that Schwartz first looked at
Nixon's file and spoke with Wykle, he also interviewed Larry
Zvara with a view to making him office manager in place of
Quine who was leaving the terminal. At that time, Schwartz
testified, Zvara told him "he was an active participant along
with Mr. Nixon in attempting to keep employees from signing
up for overtime on Saturday and Sunday, and that he himself
did not work and considered their joint attempt as successful,
therefore damaging to the Company." Schwartz told Zvara
he appreciated his honesty and promoted him despite what
Zvara had told him. Schwartz obtained a written statement
incorporating what Zvara had told him, and, according to
Schwartz, sought through Zvara to obtain statements from
any willing employees with direct knowledge of Nixon's role
in the slowdown. The only other signed employee statement
obtained was Dougherty's which is set forth above.
Schwartz spoke directly to only one other employee, Max
Heeman, a casual rate clerk, and asked him why he had not
worked. Heeman initially said he had plans to spend the
weekend in Pennsylvania and wasn't involved in any slow-
down However, according to Schwartz, when Heeman in-
dicated that he knew more but didn't want to implicate any-
one, Schwartz-told Heeman he believed he was already aware
of the facts, and Heeman then said that Zvara had asked him
not to work."
Schwartz testified that he made the ultimate decision to
discharge Nixon based on the circumstantial evidence that
there was a slowdown, Nixon's 1971 suspension, and the
direct statements of Zvara and Dougherty that Nixon had
violated article XVIII of the contract.
Schwartz testified that he did not discipline Zvara because
his investigation showed that several other employees were
also involved and the contract article under which he acted
against Nixon applied only to stewards. He testified that if he
had decided to rely on any other article to discipline Zvara
or any other employee he would have had to move against all
those involved. He testified, "In other words, if I took action
Mr. Zvara, I would then have to take similar action against
Mr. McCartney, against Charlie Rice, and anyone else who
had admitted that they took part. I was really not desirous
of firing everybody in the office, quite frankly."
13. Business Agent Wykle's testimony concerning his role
in Nixon 's discharge and the processing of his grievance
According to Wykle, on or about October 17 he received
a call from Schwartz in which, among other things, Schwartz
advised him that due to the seriousness of the situation that
he had elected to continue the investigation. Wykle testified
that he "vigorously told him to cool it. The people are upset
over the contract. It would be very unwise to continue any
kind of investigation, and I tried to talk him out of going
forward with his investigation " Schwartz told him that he
would be hearing from Schwartz. Wykle testified that he
talked to Schwartz on more than one occasion about the
investigation.
Wykle testified that he did not remember when he received
the letter dated October 13 signed by Platt. He conceded that,
in an affidavit given during the investigation of this case, he
stated that he had received the letter on or about October 13,
but testified that at the time he gave the statement he relied
on the date which appeared on the letter and was not aware
at that time that there was a discrepancy between the date on
the letter and the date it was mailed.
Wykle testified that after he received notice of Nixon's
discharge he proceeded to represent Nixon as best as he
could. He testified that one of them contacted the other, and
Nixon came to his office to discuss the problem. According
to Wykle, Nixon advised him that he was going ahead with
private counsel and that he was getting some documents
prepared in his defense. Wykle testified that they were in
communication thereafter, Nixon would call him and he
would call Nixon.
12 This referred to Nixon's 1971 suspension for refusing to cross a picket 11 Heeman's version of this conversation was slightly different, but in
line described above neither version is there any indication that Heeman implicated Nixon
PACIFIC INTERMOUNTAIN EXPRESS 595
Wykle testified that he represented Nixon "vigorously" at
the grievance hearing, and did everything he could to repre-
sent Nixon as effectively as he was able. He described his
representation as follows
We had a copy of the labor agreement and,a copy'of
the grievance, and Mr. Nixon and I proceeded to present
the Union's case After a rather long drawn out state-
ment I recommended that Mr. Nixon be put back to
work immediately with full back pay.
Wykle did not testify, however, as to the content of his
statement , nor did he testify at all as to the discussion of the
October 13 letter at the grievance hearing.
Wykle denied that he did anything to cause the discharge
of Nixon He conceded that he felt that his relation with
Nixon was strained and that Nixon was one of the ringleaders
in opposition to ratification of the contract . He also conceded
that he was suspicious that Nixon had violated the contract
However , he denied that this affected his representation of
Nixon.
B. Concluding Findings
1. Credibility
a. The slowdown
There are two basic areas in which credibility issues have
been raised. The first concerns whether or not there was a
slowdown and the extent of Nixon's involvement in it. The
second concerns the explanations of Schwartz and Wykle of
the Nixon discharge and the handling of the grievance.
Although a number of witnesses were called to testify
about the slowdown and Nixon's role in it, I note that the
complaint does not allege any impropriety in the October 8
or 12 disciplinary actions, and there is no contention made
that employees were engaged in protected concerted activity
on September 29 and 30 Therefore, resolution of these credi-
bility issues is useful more to provide background against
which later conduct can be measured than to provide any
element essential to ultimate conclusions in this case. With-
out setting forth all the testimony, there first appears to be
little basis for doubt that there was a concerted refusal to sign
up for overtime on September 29 and 30. In addition to
Zvara, Charles Rice and other employees testified that an
effort was made to induce employees not to sign up for over-
time, and the testimony of Rice and McCartney makes it
clear that, whatever other reasons they advanced for not
working that weekend , a principal consideration was the
desire to bring pressure on PIE by not working
With respect to Nixon's role, the evidence is more in con-
flict Although Zvara testified that out of his conversations
with Nixon there was a decision to move forward with the
plan, he had no specific recollection of what was said in that
regard , and testified , "Perhaps a better wording would be that
no decision was ever reached not to do it rather than to say
a decision was reached to continue with it." The testimony
of casual employee Tim Wood was somewhat more affirma-
tive, that Nixon telephoned him and said he would appreciate
it if Wood would be unavailable in the event he was called to
work by PIE that weekend. These were the only two wit-
nesses to , testify that Nixon became directly involved in the
slowdown . While other witnesses denied that Nixon ever
spoke to them about the slowdown ," and two testified that
Nixon in effect told them that it was up to them as individuals
to decide whether to work , 15 Nixon failed to deny Wood's
testimony unequivocally , and the testimony of McCartney
indicates that Nixon did not separate himself completely
from the attempt to induce the slowdown Thus, Nixon de-
nied that he called Wood to ask him not to come in, in the
event he was called to work by PIE, but when Nixon was
asked if he had no contact with Wood , Nixon replied, "That
is not my testimony I did have contact with him. I did not
ask him not to report to work for the 29th and 30th ." While
Nixon described the substance of some conversations he had
with Wood , he did not rule out contact during the week
before the slowdown or the possibility that there was some
discussion with Wood short of a direct request that he not
work which Wood might have construed as a request to be
unavailable . McCartney , a witness for the General Counsel,
testified with some reluctance that Nixon was present on one
occasion when McCartney was discussing the slowdown with
Rice, and Nixon commented that he could get in real trouble
because he was a steward but that if no one else worked he
might stay out . From all of the evidence , it appears that
Nixon played a somewhat ambiguous and equivocal role dur-
ing the week preceding the slowdown , remaining in the back-
ground for the most part , aware of what was happening
without interfering or disapproving , but giving "proper" re-
sponses when confronted directly by employees seeking ad-
vice
b. The testimony of Schwartz
(1) The "October 13" letter signed by Platt
Although Schwartz explained the failure to send the "Oc-
tober 13" letter until November 26 and its misdating at that
time as the product of multiple inadvertences, the evidence
persuades me that the likelihood that the series of oversights
and errors described by him occurred is much less than that
the letter was deliberately misdated to hurdle an obvious
procedural barrier. to discharging Nixon in late November for
an offense which occurred 2 months earlier, for which he was
suspended 7 days on October 8, and for which the suspension
was reduced on October 12. If the "October 13" letter had
been sent on October 13, it would have been possible to argue
that the reduction of the suspension on the previous day was
intended as conditional , pending further investigation . But, of
course, it was not sent on October 13, and I find ample reason
to believe that it was not even conceived on October 13, let
alone drafted, and left to languish unsent in a file on
Schwartz' desk from October 19 until November 26.
District Manager Mayoras, who was consulted about the
reduction of Nixon 's suspension , said nothing about further
investigation or conditioning Nixon 's return on further inves-
tigation. The letter to Nixon signed by Quine on October 12.
with a copy to Wykle, says nothing about further investiga-
tion Platt , who was allegedly in charge of the terminal on
14 Joe Fazek, Max Heeman, Gladys Dougherty, Lila Fay Smith, Gregory
Smith, Pauline Jacobs, and Charles Louis Smith
15 Michael Thomas Manning and Colleen Margaret Waskowski
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 13, appeared as a witness and testified to rebut an
alleged post-discharge admission attributed to him, but he
was asked nothing about the "October 13" letter or the cir-
cumstances of its preparation despite its critical importance
to this case and the claim that he originally wrote it. No
testimony was offered to explain why, if he had prepared a
handwritten draft, he did not send it immediately himself to
protect PIE's position in the event that further investigation
turned up cause for more severe discipline Even assuming
Platt as interim manager had limited authority, the letter
would have done no more than preserve Respondent's posi-
tion, and if he prepared a draft for his own signature presum-
ably he had authority to send it. Moreover, as Quine wrote
the two previous letters, it remains unexplained why Platt did
not merely ask Quine to write a further letter, clarifying
Quine's October 12 letter.16 Also unexplained was why, un-
like the two previous letters, the "October 13" letter was
addressed to Wykle with not even a copy to Nixon.
Schwartz' testimony as to the letter only raises further
questions. First, as set forth above, he initially testified that
he asked Platt to draft the letter and then branded his own
testimony an absolute error. Such an absolute error with
respect to such a critical matter is a puzzling mental lapse
unless Schwartz inadvertently spoke the truth and then re-
canted when he realized that the handwritten draft could not
have been properly dated October 13 if he told Platt to write
it necessarily some time after October 17 Assuming, how-
ever, that Schwartz' absolute error was only the product of
a mental lapse, his testimony begs the questions why the letter
wasn't sent (a) when Platt allegedly first pointed it out to him
a day or two after October 17, (b) when Schwartz spoke to
Wykle and allegedly said he would send it about a week after
October 17, (c) when Schwartz first looked at the file around
the same time, and (d) until November 26 when the investiga-
tion was complete and Schwartz was about to discharge
Nixon. Schwartz' explanation that he overlooked it and
wasn't overly concerned about the letter is hardly convincing.
Although Wykle had nothing to do with the preparation
of the "October 13" letter, he was its addressee. However, his
testimony, as discussed below, does nothing to bolster the
testimony of Schwartz, but in fact adds to the cause to dis-
believe their testimony concerning the letter.
PIE contends that, despite everything else, there is one
overriding fact which supports Schwartz' explana-
tion-that PIE sent the letter by certified mail PIE
contends that anyone seeking to concoct a story would not
through the use of certified mail provide the means of its
unraveling but would have used ordinary mail I have consid-
ered this fact and it does have some weight, but not enough.
For one thing, Quine's letters indicate routine use of certified
mail relating to disciplinary matters, and no one may have
been thinking beyond the grievance procedure when this let-
ter was sent . But beyond that, as will be seen below, my
disbelief of Schwartz is general and rests on other factors as
well as circumstances of the sending of the "October 13"
letter.
(2) The Dougherty affidavit
Schwartz also told an incredible tale concerning the notari-
zation of Mrs. Dougherty's affidavit. Although Zvara, a no-
tary public was with him at Dougherty's house, Schwartz
testified that he decided that it would be better if someone else
notarized the affidavit because Zvara participated in getting
it. Somehow, according to Schwartz, it seemed more appro-
priate to Schwartz to have Zvara take Dougherty's statement
to John Baker," another company employee who is also a
notary, and have Baker falsely certify that Dougherty's state-
ment was sworn to and subscribed to before him Even as-
suming that Dougherty would have been willing to swear to
the affidavit, it would be difficult to understand Schwartz'
reasoning. But Dougherty testified that she objected even to
the second affidavit and signed it only after she was told that
the difference was immaterial and that the affidavit cleared
Nixon. Her testimony rather than Schwartz' illogic offers the
only ready explanation for the gross impropriety chosen by
Schwartz as the better way. Since Dougherty still did not
agree to the contents of the affidavit, it was better not to ask
her to notarize the statement while Schwartz was at her house
and to use a notary other than Zvara, who had heard her
object to signing it. I conclude that Schwartz grossly abused
PIE employee Baker's commission as a notary in knowingly
utilizing it to obtain false notarization of Dougherty's state-
ment. These considerations cause me not only to discredit
Schwartz' version of the circumstances under which Dough-
erty's statement was given but also to question Schwartz'
regard for the oath taken before me and his veracity other-
wise.
(3) Schwartz' reason for discharging Nixon
As set forth above, Schwartz testified that he discharged
Nixon on November 28 because of circumstantial evidence
showing that there was a slowdown, Nixon's past record, and
the statements of Zvara and Dougherty. Yet, if Schwartz is
to be believed, within a week after Schwartz arrived at the
terminal Schwartz knew as much as he was going to learn
about the slowdown and Nixon's involvement. Schwartz tes-
tified that he looked through the file and learned of Nixon's
record about a week after his arrival at the terminal. At about
the same time, Schwartz interviewed Zvara for the vacant
office manager's job and was told by Zvara that Zvara and
Nixon were active participants in keeping employees from
signing up for overtime on Saturday and Sunday It is dif-
ficult to see how this information differed from what Roberts
believed when Nixon was originally suspended, but, assuming
that Zvara disclosed greater participation by Nixon than PIE
originally believed, after Zvara spoke to Schwartz, Schwartz
learned nothing else which could make Nixon's conduct ap-
pear more egregious. Certainly the statement from Dough-
erty added nothing. Its first paragraph did not meet
Schwartz' advance expectations, and she insisted that the
second paragraph was untrue even though she signed the
statement. Schwartz spoke to only one other employee, Hee-
man, who did not implicate Nixon. The only other evidence
16 It should be noted that by November 26 Quine was no longer employed
at the terminal, and Platt was the highest official who was there both on
October 13 and on November 26
17 Zvara, who testified, was not asked about the affidavit and Baker was
not called as a witness There is thus only Schwartz' testimony that Zvara
took the statement to Baker for notarization
PACIFIC INTERMOUNTAIN EXPRESS 597
on which Schwartz testified he relied was an analysis of work
patterns . The record is silent as to when the analysis was
made, but that analysis in fact added nothing to what Zvara
had already told Schwartz , that the refusals to work weekend
overtime were more than coincidence Thus, it appears that
for a full month before Nixon 's discharge Schwartz knew as
much about Nixon 's role in the slowdown as he knew on
November 28. That Schwartz waited until November 28 sug-
gests that other intervening causes and not the facts so long
known to Schwartz led to the discharge.
That Schwartz did not regard the slowdown so seriously is
further indicated by his promotion of Zvara without any
discipline and his failure to take any action against Rice,
McCartney, and others whom he also had learned were active
in promoting the slowdown . Schwartz testified that he distin-
guished Nixon from the other proponents of the slowdown
because as a steward Nixon had a special contractual duty
different from others. However , he testified if he disciplined
one of the others he would have had to discipline all of them
equally . Schwartz explained , "I was really not desirous of
firing everybody in the office, quite hardly ." But that was not
Schwartz ' only choice . Suspension or warning were also
available . Schwartz did nothing, giving rise to strong doubt
that the refusal to work overtime was viewed as seriously as
Schwartz alleged. '
When one puts all of the above together-the inadequately
explained misdated letter to paper over the procedural crack
in the case against Nixon , the fraudulently notarized affidavit
of Dougherty obtained with the representation that it would
help Nixon but used for the contrary purpose, the inade-
quately explained hiatus between Nixon's suspension and dis-
charge, and the unconvincing explanation for taking no disci-
plinary action of any kind against other known participants
in the slowdown-the conclusion is compelling that
Schwartz ' explanation for Nixon 's discharge cannot be be-
lieved and indeed that Schwartz ' testimony as a whole is
worthy of little credit.
c. The testimony of Wykle
Wykle, at least theoretically , was not in a position to testify
as to the preparation of the "October 13" letter . But his
testimony as to its receipt was no more convincing than
Schwartz ' testimony concerning its preparation and supports
the conclusion that the true facts concerning this letter were
suppressed by both Schwartz and Wykle Professing at the
hearing not to remember when he received the letter because
he has voluminous correspondence , Wykle conceded that, in
an affidavit given during the investigation of this case, he
stated that he received the letter on or about October 13. He
testified that in so stating he merely relied on what appeared
on the face of the letter and was not then aware of the discrep-
ancy between the date on the face of the letter and the date
when it was mailed . This testimony would be plausible but for
Nixon 's uncontradicted testimony about what happened
before the area grievance committee . For it was there that
Nixon first heard about a continuing investigation and the
"October 13" letter. When Nixon protested that he knew
nothing about the letter, the chairman of the committee said
it was sufficient that Wykle received a copy. Nixon then
asked Wykle why he wasn 't advised of the letter or given a
copy. Wykle's only reply was, "Oh, didn' t I give you a copy?"
But, if in fact Wykle had received this letter on November 28,
as the return receipt shows, he knew on November 30, two
days later, that he hadn' t given Nixon a copy, and he knew
that he and PIE were leaving Nixon with a false impression
that the letter was sent on October 13 Having dissembled
then , it is not credible that at the time he gave his affidavit
Wykle forgot what this letter represented and when he re-
ceived it , and I also disbelieve his testimonial claim made at
the hearing in the face of the return receipt and a stipulation
as to when the letter was sent that even then he had no
recollection of when he received this letter.
, There is also reason to discredit Wykle as to the contact
between him and Nixon after Nixon was discharged and
Wykle's efforts in behalf of Nixon. Wykle claimed that after
Nixon was discharged, Nixon came to his office to discuss the
problem and advised Wykle that he was going ahead with
private counsel and getting some documents . According to
Wykle they were in communication thereafter with each call-
ing the other . Nixon testified that he had no meeting with
Wykle concerning preparation of his case , and had only one
telephone conversation between his discharge on November
28 and the grievance hearing on November 30. Given the
short interval of time, Wykle's failure to tell Nixon of the
"October 13" letter, the total lack of evidence that Wykle did
anything to prepare for the area grievance committee hearing,
and the strained relationship between Wykle and Nixon, I
credit Nixon. In sum , I do not credit Wykle's testimony as
to his role in the discharge of Nixon and the processing of
Nixon's grievance.
d. The statement by Platt to Stoats
As set forth above, employee Betty Staats testified that
after Nixon's discharge Platt told her that Nixon was dis-
charged because he made trouble for someone outside the
Company, and Platt declined to answer when she asked if it
was Wykle. Although post-discharge statements in the nature
of admissions must always be viewed with caution, I am
convinced that Staats testified truthfully and should be cred-
ited . She remained an employee of PIE at the time of the
hearing, and whatever interest she may have had to aid Nixon
was balanced by her interests as a continuing employee.
While Platt 's testimony was brief and he was subjected to a
minimum of cross-examination , his interests were clearly al-
lied with PIE' s against Nixon. Finally, as between the two
versions , I find it more plausible that Staats explored what
Platt meant by his reference to unspecified trouble caused by
Nixon than that she followed that reference with a simple
terminal declaratory statement . I have credited Staats.
(1) The alleged unfair misrepresentation of Nixon by
Local 497
The complaint alleges that Local 497 through Wykle and
others failed and refused to afford Nixon fair representation
in the processing of his grievances because Nixon opposed
Wykle with respect to ratification of a new agreement and
wrote to International Brotherhood President Fitzsimmons
complaining about Wykle.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The duty of fair representation requires that a union serve
the interests of all bargaining unit employees fairly and in
good faith, and without hostile discrimination against any of
them on the basis of arbitrary, irrelevant, or invidious distinc-
tions. To establish that the duty has been breached, however,
it is not sufficient to establish that a union has been negligent
or exercised poor judgment, for the interest of effective ad-
ministration of contractual grievance machinery requires that
a union be afforded a broad range of discretion in deciding
what grievances to present and how to present them.18 But
a union representative presenting a grievance is required to
represent the grievant as an advocate and to present his griev-
ance in a light most favorable to the grievant. 19
Of several grounds in support of the contention that there
was unfair representation in this case most compelling is the
evidence that Wykle failed to disclose to Nixon what he knew
of the "October 13" letter thereby obstructing a substantial
defense which should have been available to Nixon and made
on his behalf. The evidence has already been set forth in detail
above. When Nixon complained that he had no notice of the
"October 13" letter and that the procedure was unfair, Wykle
concealed what he knew, that he received the letter on the
same day as Nixon's discharge, professing a false uncertainty
as to whether he had given Nixon a copy. Thus, Wykle per-
mitted the area grievance committee to believe that the letter
was sent on October 13 and undercut Nixon's assertion that
he had no notice by answering Nixon's question to him with
his question to Nixon. Wykle's omission was not immaterial
Had he disclosed that he received the letter only 2 days earlier
it would have revealed a substantial crack in PIE's case
against Nixon which might well have changed the result
before the committee and certainly would have given Nixon
a strong case for arbitration if the committee and Local 497
permitted the grievance to reach that stage. For it is a widely
accepted principle in grievance arbitration that after an em-
ployee has been punished once for an offense he may not be
subjected to additional and more severe penalties for the same
offense unless it is made clear that the initial penalty is subject
to the possibility of further discipline. Borrowing from crimi-
nal law, such dual punishment is termed double jeopardy and
is eschewed.20
In these circumstances, Wykle's concealment of material
facts from Nixon and the area grievance committee can
hardly be viewed as falling within the limits of good-faith
representation of Nixon. Wykle was not merely negligent, but
knew what he was doing and must have done it deliberately
and with knowledge that he was deceiving both Nixon and
the committee. Even without an apparent cause related to
Nixon's union activity, under the cases cited above the evi-
dence would be sufficient to establish a breach of the duty to
represent Nixon fairly in violation of Section 8(b)(1)(A). Here
18 Vaca v Sipes, 386 U S 171, 190 (1967), Local 575, Packinghouse
Division, Amalgamated Meat Cutters and Butcher Workmen (UPWA),
AFL-CIO (Omaha Packing Company), 206 NLRB 576 (1973), Teamsters
and Chauffeurs Local Union No 729, IBT(Penntruck Co, Inc), 189 NLRB
696 (1971)
19 Truck Drivers, Oil Drivers and Filling Station and Platform Workers
Local No 705, IBT (Associated Transport, Inc), 209 NLRB 292 (1974)
20 See Stauffer Chemical Co, 59 LA 414, 416, Rite Beverage Co, 59 LA
380, 382, Hi-LifePacking Co, 41 LA 1083, 1085-87, Ross Gear & Tool Co,
35 LA 293, Olin Mathieson Chemical Corp, 35 LA 95, 100-101, Interna-
tional Harvester Company, 16 LA 616
there is an apparent union related cause which may readily
be inferred from the consistent opposition of Nixon to ratifi-
cation of the contract with PIE and his complaint to Interna-
tional President Fitzsimmons.
I find that through Wykle, Local 497 failed to provide
Nixon with fair representation in the presentation of his
grievance on November 30, thereby violating Section
8(b)(1)(A) of the Act.
(2) The alleged discrimination against Nixon by PIE and
Local 497
The complaint alleges Local 497 attempted to cause PIE
to discharge Nixon and that PIE discharged Nixon in col-
laboration with and/or at the insistence or request of Local
497. There is no direct evidence that Wykle asked PIE to
discharge Nixon or that Local 497 and PIE worked together
to achieve that result. But there is evidence from which an
inference may be drawn that there was an understanding
between them pursuant to which they collaborated toward
that end.
Once again, the "October 13" letter is of major signifi-
cance, for, having rejected the testimony of Schwartz and
Wykle concerning this letter, the evidence stands as showing
that on November 26 PIE sent a predated letter to Wykle
which was then utilized before the area grievance committee
to show that Local 497 had timely notice of PIE's continuing
investigation of Nixon. Not only did Wykle conceal the truth
about this letter from the committee, but Schwartz also mis-
led the committee by presenting this letter without further
explanation. That Schwartz presented it and Wykle remained
silent gives rise to a strong inference that Schwartz and Wy-
kle had communicated in advance about this letter21 and
had an understanding that it would be utilized by Schwartz
without objection by Wykle Such an understanding could
only have had as its purpose an attempt to discharge Nixon
in such a way that his prior suspension for the same offense
could not be raised as a bar to the discharge before the area
grievance committee. In short, there is reason to conclude
that Wykle had an understanding with Schwartz, the purpose
of which was to carry out Nixon's discharge.
The fact that the reasons given for the discharge cannot be
believed itself supports an inference that the true reason could
not be disclosed without revealing unlawful motivation.22
Moreover, as set forth above, the fact that Schwartz knew
everything he needed to know about Nixon's record and his
role in the slowdown a month before the discharge, taken
with the belated concoction of the October 13 letter, indicates
that some later event rather than the slowdown caused the
discharge. The one intervening event which appears and ex-
plains both the discharge and Wykle's collaboration with
Schwartz in the effort to make it stick before the area griev-
ance committee is Nixon's continuing conflict with Wykle
and his November 6 letter to Fitzsimmons.23 Finally, al-
21 Both testified that they were in frequent communication Schwartz of
course also testified that he told Wykle he would send the letter about a
month before it was sent For reasons set forth above, I have not credited
that testimony
22 Shattuck Denn Mining Corporation v NLRB, 362 F 2d 466, 470
(CA 9, 1966)
PACIFIC INTERMOUNTAIN EXPRESS 599
though not chargeable as an admission against Local 497, the
statement by Platt, the signer, of the "October 13"'letter, to
employee Staats that Nixon was discharged because he was
a troublemaker for someone outside the Company gives
added support to the conclusion that PIE discharged
Nixon because Nixon was making trouble for Wykle
From all of the above, I conclude that Nixon was not
discharged by PIE because of his participation in the Septem-
ber slowdown but because of his continuing opposition to
Wykle and his letter of complaint to Fitzsimmons. I find that
PIE thereby violated Section 8(a)(3) and (1) of the Act. Fur-
thermore, while there is no direct evidence that Wykle re-
quested or instigated the discharge, the evidence warrants the
conclusion that Wykle and Schwartz collaborated and had an
understanding as to the "October 13" letter so as to achieve
Nixon's discharge and rejection of Nixon's certain grievance.
Accordingly, I also find that Local 497 by virtue of that
understanding violated Section 8(b)(2) and 8(b)(1)(A) of the
Act.24
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the operations of PIE
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that Respondents violated Section 8(a)(3)
and (1) and 8(b)(2) and (1)(A) of the Act, I shall recommend
that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act
As I have found that Local 497 through Wykle entered into
an understanding with PIE to achieve the discharge of
Charles Richard Nixon and the rejection of his grievance
because of his union activities, I shall recommend that Local
497 be ordered to notify PIE, in writing, with a copy to
Nixon, that it has no objection to his immediate and full
reinstatement to his former job or, if that job no longer exists,
to a substantially equivalent position without prejudice to his
seniority or other rights and privileges I shall also recom-
mend that PIE be ordered to offer Nixon immediate and full
reinstatement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
I shall further recommend that Respondents be ordered
jointly and severally to make Nixon whole for any loss of
earnings he may have suffered as a result of the discrimina-
tion against him by payment to him of the amount he nor-
mally would have earned from the date of his discharge to the
dates set forth hereafter, less net earnings, to which shall be
added interest at the rate of 6 percent per annum , in accord-
ance with the formula set forth in F W. Woolworth Company,
23 While PIE may have had no independent reason to protect Wykle, it
had a clear interest in the outcome of the issue over which Nixon's conflict
with Wykie arose, and its interest was aligned with Wykle's
24 Walter J Barnes Electrical Co, Inc, 188 NLRB 183, 186 (1971)
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). In the case of the Union, its backpay
liability shall terminate 5 days after it notifies PIE and Nixon
that it has no objection to his reinstatement, as provided
above. In the case of PIE, its backpay, liability shall terminate
on the date that Nixon is offered reinstatement.
Upon the basis of the above findings of fact and the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1 Pacific Intermountain Express Co. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 497, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By failing and refusing to afford Charles Richard Nixon
full and fair representation in the processing of grievances
because of his union activities, Respondent Union has en-
gaged in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(b)(1)(A) and 2(6)
and (7) of the Act
4 By entering into an understanding with Respondent
Employer for the discharge of Charles Richard Nixon be-
cause of his union activities, Respondent Union has engaged
in and is engaging in unfair labor practices affecting com-
merce within the meaning of Sections 8(b)(2) and (1)(A) and
2(6) and (7) of the Act.
5. By discharging Charles Richard Nixon because of his
union activities, Respondent Employer has engaged in and is
engaging in unfair labor practices affecting commerce within
the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.
Upon the basis of the above findings of fact, conclusions of
law, and the entire record in the case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER25
A. Respondent Pacific Intermountain Express Co., Rich-
field, Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from-
(a) Encouraging membership in International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 497, or in any other labor organization, by
discharging, or in any other manner discriminating against
any employee in regard to hire or tenure of employment or
any term or condition of employment except to the extent
that membership may be required by an agreement as a con-
dition of employment, as authorized in Section 8(a)(3) of the
Act as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
25 in the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Offer Charles Richard Nixon immediate and full rein-
statement to his former job or, if that job no longer exists, to
a substantially equivalent position without prejudice to his
seniority or other rights and privileges.
(b) Jointly and severally with Respondent International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 497, make Charles Richard Nixon
whole for any loss of earnings suffered as a result of the
discrimination against him in the manner set forth in the
section of the Decision entitled "The Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records relevant and
necessary to a determination of compliance with paragraphs
(a) and (b) above
(d) Post at its Richfield, Ohio, place of business copies of
the attached notice marked "Appendix A."26 Copies of said
notice on forms provided by the Regional Director for Region
8, after being duly signed by Respondent Employer's repre-
for any loss of earnings he may have suffered as a result of
the discrimination against him in the manner set forth in the
section of the Decision above entitled "The Remedy "
(b) Notify Pacific Intermountain Express Co., in writing,
that it has no objection to Nixon's employment and requests
them to offer him reinstatement, and furnish Nixon with
copies of such notification
(c) Post at its office copies of the attached notice marked
"Appendix B."27 Copies of said notice, on forms provided
by the Regional Director for Region 8, after being duly signed
by an authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Deliver to the Regional Director for Region 8 signed
copies of said notice in sufficient number to be posted by
Pacific Intermountain Express Co., the Employer willing, in
all places where notices to employees are customarily posted
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith
sentative, shall be posted by it immediately upon receipt 27 See fn 26, supra
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent Employer to insure that
said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith
B. Respondent International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
497, its officers, representatives, and agents, shall
1. Cease and desist from.
(a) Causing or attempting to cause Pacific Intermountain
Express Co. to discriminate against any of their employees in
violation of Section 8(a)(3) of the Act
(b) Failing and refusing to afford employees full and fair
representation in the processing of grievances because of their
union activities
(c) In any other manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act,
except to the extent that such rights are affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2 Take the following affirmative action which is necessary
to effectuate the policies of the Act
(a) Jointly and severally with Respondent Pacific Inter-
mountain Express Co make Charles Richard Nixon whole
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT encourage membership in International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 497, or any other organi-
zation, by discharginb, or in any other manner dis-
criminating against our employees in regard to their hire
or tenure of employment or any other condition of em-
ployment, except to the extent that membership may be
required by an agreement as a condition of employment
as authorized by Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed in Section 7 of the Act
WE WILL offer Charles Richard Nixon immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position with-
out prejudice to his seniority or other rights or privileges,
and WE WILL make him whole for any loss of earnings he
may have suffered because of his discharge, with interest
at 6 percent per annum.
26 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
PACIFIC INTERMOUNTAIN EXPRESS CO
PACIFIC INTERMOUNTAIN EXPRESS 601
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Pacific Inter-
mountain Express Co to discriminate against Charles
Richard Nixon or any other employee in violation of
Section 8(a)(3) of the Act.
WE WILL NOT fail or refuse to afford any employee full
and fair representation in the processing of grievances
because of his union activities.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights
are affected by an agreement requiring membership in a
labor organization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of
1959.
WE WILL notify Pacific Intermountain Express Co., in
wasting , that we have no objection to the employment of
Charles Richard Nixon and request his reinstatement,
and WE WILL furnish him with a copy of such notifica-
tion
WE WILL make Charles Richard Nixon whole for any
loss of earnings suffered because of his discharge, with
interest at 6 percent per annum.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA, LOCAL 497