Pacific Motor Trucking Co.

National Labor Relations Board - Board DecisionsFeb 28, 1979

240 N.L.R.B. 983 (N.L.R.B. 1979)

PACIFIC MOTOR TRUCKING COMPANY 983 Pacific Motor Trucking Company and Mark E. Van Dyke. Case 28-CA4757 February 28, 1978 DECISION AND ORDER BY CHAIRMAN FANNING ANtD MI1MBIRS JENKINS AND) Mt RPIHY On September 12, 1978, Administrative l.aw Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief and Respondent filed a brief in support of the Administrative Law Judge's Decision. 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 onl to the extent consistent herewith, and to adopt his rec- ommended Order, as modified herein. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) and (3) of the Act by failing to call employee Van Dyke as a casual employee, and by threatening not to continue to em- ploy him as a casual, but he found no violation as to Respondent's failure to employ Van Dyke on a regu- lar basis. Accordingly, he ordered Respondent to cease and desist from withholding casual employ- ment from Van Dyke and threatening Van Dyke. and he directed Respondent to hire Van Dyke as a probationary employee if it determined that he would have been hired except for Respondent's un- lawful actions. The General Counsel contends that the record contains evidence sufficient to find a violation of the Act in Respondent's failure to hire Van Dyke on a regular basis, and that the remedy ordered by the Administrative Law Judge is ineffective and illusory. We find merit in these contentions. One month after it unlawfully ceased using Van Dyke as a casual, Respondent began hiring casuals as full-time employees. Before the violations herein occurred, Respondent's terminal manager informed Van Dyke that he was under consideration for per- manent employment after casual Oscar Verduzco and "a couple of minorities were hired." Van Dyke was also told by Respondent's dispatcher that he would be the second person on the list of those con- sidered for full-time employment. Respondent subse- 240 NLRB No. 142 quently hired four casuals on a full-time basis, in- cluding Verduzco and one minority employee. with- out offering Van Dyke a position. Respondent was able to request casual employees from the hiring hall by name. The record and ex- hibits indicate that Respondent employed Van Dyke as a casual just as. if not more. frequently than the four casuals who were hired on a full-time basis. The record also indicates that Van Dyke was employed longer than any of those employees who were hired permanently. We conclude that, prior to the filing of Van Dyke's wage grievance, he was considered to be an employee of good standing, he was used frequent- ly, and was in line for permanent employment, but Respondent unlawfully discriminated against him for filing the grievance and thwarted his efforts to gain permanent employment by excluding him from the entire hiring process. Therefore, we find that the above conclusions, which are based on credited testi- mony and the record as a whole, establish a prima fiawie case that Van Dyke would have been hired as a regular employee on probation. We also find that Respondent presented no credit- ed evidence to rebut the General Counsel's case. The Administrative Law Judge did not credit Respondent's testimony that the four hired individ- uals were superior in ability to Van Dyke. This con- clusion is also buttressed by the fact that the two of the hired employees did not successfully complete their probationary period. Therefore, we disagree with the Administrative Law Judge's finding that Re- spondent did not violate the Act by failing to hire Van Dyke as a regular employee. Accordingly, we find that Respondent violated Section 8(a)(l) and (3) of the Act by refusing to hire Van Dyke as a regular employee, subject to the same probationary period as the four individuals who were hired. AMENDED CONCLt.ISIONS or LAW Substitute the following paragraph for Conclusion of L.aw 1: "1. By ceasing to use Van Dyke after February 10, 1978. and by failing to hire Van Dyke as a regular employee on the date employee Verduzco was hired, Respondent violated Section 8(a)(3) and () of the Act." REMEDY Having found that Respondent unlawfully ceased using Van Dyke as a casual employee, and unlawful- ly failed to hire Van Dyke as a regular employee, we shall order Respondent to hire Van Dyke immedi- Pacific Motor Trucking Company and Mark E. Van 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ately, subject to probation, and to make him whole for both any loss in earnings and benefits suffered by reason of its unlawful failure to use him as a casual after February 10, 1978, and the failure to employ him as a regular employee.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Pacif- ic Motor Trucking Company, Tucson, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraphs 2(a) and (b): "(a) Offer employment to Van Dyke as a regular employee subject to the same probationary period that was given to Oscar Verduzco, Leroy Harris, Chris Dean, and Pat Sparr and make him whole for any loss of earnings and benefits suffered by reason of its unlawful failure to use him after February 10, and for its unlawful failure to hire him when the first employee, Verduzco, was hired, with interest added." 2. Substitute the attached notice for that of the Administrative Law Judge. Because Respondent failed to hire Van Dyke as a regular employee, we shall resolve the ambiguity as to when he would have been regularly em- ployed by presuming that he would have been hired on the same date that casual employee Verduzco was hired on a full-time basis. Accordingly, we shall order that Respondent make Van Dyke whole for wages and benefits lost from failing to use him as a casual employee from February 10. 1978. until the date that employee Verduzco was hired. and thereafter to make him whole for wages and benefits lost from failing to hire him as a full-time employee. Assuming that we had affirmed the Administrative l.aw Judge's Decision in its entirety, thereby finding that Respondent's failure to hire Van Dyke was not violative of Sec. 8(a)(l) and (3) of the Act. Van Dyke would still be entitled to backpay based on regular full-time employment from the date Respondent refused to consider him for regular employment until he was properly considered. Lipse,. Inc., 172 NLRB 1535 (1968). APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We intend to abide by the following: Section 7 of the National Labor Relations Act gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activity ex- cept to the extent that the employees' bargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT withhold work from Mark E. Van Dyke because of his efforts, directly and through the Union, to enforce a perceived wage entitlement under the prevailing labor contract. WE WILL NOT tell any employee that we will no longer use him should he file a grievance in aid of a perceived wage claim under the labor con- tract; and, in the same context, that we look for employees "that create the fewest waves." WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their exercise of rights under the Act. WE WILL offer employment to Van Dyke as a regular employee subject to the same probation- ary period as that given to Oscar Verduzco, Le- roy Harris, Chris Dean, and Pat Sparr, and WE WILL make Van Dyke whole for any loss bf earn- ings and benefits suffered by reason of our un- lawful failure to hire him when Verduzco was hired, with interest added. PACIFIC MOTOR TRUCKING COMPANY DECISION STATEMENT OF THE CASE RICHARD J. BOYCE. Administrative Law Judge: This case was heard before me in Tucson, Arizona, on June 20, 1978. The charge was filed on March 10, 1978, and amended on April II, by Mark E. Van Dyke, acting in his individual capacity (Van Dyke). The complaint was issued on April 19, and alleges that Pacific Motor Trucking Company (Re- spondent) has violated Section 8(a)(1) and (3) of the Na- tional Labor Relations Act (Act). The parties were permitted during the trial to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Post-trial briefs were filed for the General Counsel and for Respondent. PACIFIC MOTOR TRUCKING COMPANY 985 1. JURISDICTION Respondent is engaged in the interstate transport of freight by motor truck. It is headquartered in Burlingame. California, and has a terminal in Tucson, Arizona. Its an- nual gross revenue from interstate hauling activities ex- ceeds $50,000. The complaint alleges. the answer admits, and it is found that Respondent is an employer engaged in and affecting commerce within Section 2(2), (6). and (7) of the Act. II LABOR ORGANIZATION The complaint alleges, the answer admits, and it is found that International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, Local No. 310 (Union) is a labor organization within Section 2(5) of the Act. III ISSUES The complaint alleges that Respondent violated Section 8(a)(3) and (1) by ceasing to use Van Dyke as a casual employee after February 10, 1978, and by failing to hire him as a regular full-time employee in March 1978; and that it violated Section 8(a)(1) on February 13, 1978, by threatening him with loss of employment should he grieve a wage dispute he had with Respondent. IV. THE AI.LEGED UNFAIR LABOR PRACTICES A. Facts Until February 10, 1978, Van Dyke had worked from time to time at Respondent's Tucson terminal, as a casual truckdriver and dock employee, for about 6 years. He has not worked for Respondent since. On February 7, Van Dyke was to work a 4-hour shift. The usual practice concerning such shifts is for the employ- ee to take a paid break in midshift and clock out 4 hours after clocking in. On February 7, however, Van Dyke worked 4 hours without break, then took a break, and then clocked out. His timecard reflected that he had been "on the clock" 4.22 hours.1 Receiving his paycheck on February 9, Van Dyke saw that he had been paid for only 4 hours on February 7. He promptly spoke with Respondent's cashier, who explained that he had not been paid for the added .22 of an hour because, under Respondent's contract with the Union. anyone credited with more than 4 hours on a given shift is entitled to 8 hours' pay. Unappeased, Van Dyke reported the situation to the Union's steward, Lee Jarven, and Jar- yen told the Union's president, Bill McCollum. On February 10, McCollum and Jarven met with Respondent's Tucson terminal manager, John Roberts, and its assistant terminal manager, Jerry Schuchardt. Al- though the meeting had been scheduled for other things, Although there are occasional references in the Iranscript Io \ an D) kes having been on the clock 4 hours and 22 minutes on Februar? 7. the weighl of evidence establishes that it was 422 hours McCollum raised the Van Dyke matter. Citing the union contract, he asserted that Van Dyke was entitled to 8 hours' pay for February 7. Roberts replied that Respon- dent would pay beyond the 4 hours it had already paid only if compelled by a grievance determination, arguing that Van Dyke himself had been in the wrong by failing to take his break at the usual time and by not clocking out in timely fashion. They went on to other matters, returning to the Van Dyke problem near the end of the meeting. Roberts said that Respondent would be willing to resolve the matter by paying Van Dyke for the extra .22 of an hour, but not for a full 8 hours. McCollum persisted that, as far as he was concerned, 8 hours' pay was owing, adding that settlement for less would be acceptable only if Van Dyke were willing. With that, in the presence of Roberts and Schuchardt, Mc- Collum directed Jarven to ask Van Dyke if he wished to settle as Roberts had proposed. McCollum declared that if Van Dyke did not, the Union would initiate grievance pro- ceedings against Respondent. Roberts testified that, at meeting's end, he anticipated that a grievance hearing would be "the next step." On February 13. Van Dyke and Schuchardt conversed about the problem. Schuchardt stated that Respondent looked for employees "that created the fewest waves," and that Roberts had said that Respondent would no longer use Van Dyke if a grievance were filed. Van Dyke respond- ed that he would drop the issue in that event, explaining that the work was more important to him, and Schuchardt said that he again would discuss the matter with Roberts. 2 As noted, Respondent has not used Van Dyke since February 10. He had worked 5 days in February through the 10th. Respondent used 18 casuals during the balance of February. 29 in March, 28 in April, and at least 20 in May. In September 1977, Van Dyke was I of II casuals used by Respondent, working 7 days; in October, he was I of 13. again working 7 days: in November, he was I of 22, work- ing 12 days; in December, he was I of 23, working 16 days; and in January 1978, he was I of 15, working 10 days. In November 1977, only 2 of the 22 casuals worked more days than he did; in December, only I of the 23: and, in Janu- ary 1978, only 4 of the 15. In an affidavit given the NLRB during the investigation of the present charge. Roberts stated that Van Dyke's claim for the extra pay "had something to do with" Respondent's no longer using him. In the same affidavit, Roberts viewed Van Dyke as "raising a stink" over "a very small matter." Respondent's dispatcher at relevant times, Ron Bauer, testified that Van Dyke has not been used since February 10 because of the Union's insistence, in the aforemen- tioned meeting that day among McCollum. Jarven, Rob- :Van Dxke is credited that Schuchardt said, per Roberts, that Van Dyke would nro longer be used hould there be a grievance Schuchardt did not explicitly dens , asing. instead testifying that he did not beliee and did not think he made the statement. Bevond that, Van Dke wras the more credible of the two in terms of demeanor and forthrightness generally. and his ersioln gains credence from Schuchardt', admittledl\ having made the commett about creatilng wares. Schuchardt testified that. b ",Waves." he meant "problems with customers. productlsity. things of that nature." Civ- en the context of the conversation. it strains creduhliN that he was not refer- ring prim.lril to the wage dispute 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erts, and Schuchardt, that Respondent cease rotating ca- suals serving as replacements for a given regular employee. Bauer elaborated that since Respondent was being re- quired to use the same casual as a replacement day after day, "I naturally wanted to have the best individual I could possibly have because it related to our cost directly." Bauer did not explain why this concern for economics would not have obtained, regardless. The Union instituted grievance proceedings over Van Dyke's pay on March 27, and a hearing was held in April. Respondent prevailed. In late February, Respondent hired an erstwhile casual employee, Oscar Verduzco, as a probationary regular em- ployee; and, in March, did likewise as concerns former casuals Christopher Dean, Leroy Henry, and Pay Sparr. Dean and Sparr had worked as casuals since June 1977, Verduzco since July 1977, and Henry since August 1977. Dean and Henry did not survive their probationary pe- riods, and no one has been hired to replace them as regular employees. Schuchardt testified that Van Dyke "was not one of the people that we considered" for hire as a regular employee. In December 1977, Van Dyke had inquired of Bauer, the dispatcher, about his chances of becoming a regular em- ployee. Bauer answered that, in his opinion. Verduzco would be the first chosen, should hiring be done, with Van Dyke next in line. On about February 1, 1978, Van Dyke put the same question to Roberts. Roberts said that Ver- duzco would be the first chosen and that "a couple minori- ties" might have to be next, with Van Dyke "in consider- ation after that." 3 Of the four hired in February and March, only Henry is a minority person. Schuchardt and Bauer testified in extravagant and seem- ingly self-serving terms of the superiority of the four hired to Van Dyke. Bauer in addition cited an alleged customer complaint against Van Dyke involving a misdelivery to a University of Arizona bookstore, and Roberts told of a purported complaint against him from a customer known as the Cowboy Corral. Bauer eventually conceded that it was Van Dyke himself, and not the customer, who called in about the bookstore problem; and the Cowboy Corral mat- ter made so little impression on Roberts that, during the NLRB's investigation of the charge, he was unable to recall from whom the complaint had come. B. Conclusions It is concluded that Respondent was prompted to cease using Van Dyke after February 10 because of his efforts, directly and through the Union, to enforce a perceived wage entitlement under the contract, and that Respondent consequently violated Section 8(a)(3) and (1) in that re- gard. As stated in N.L.R.B. v. Victor Otlanv Roofing Co., 445 F.2d 299, 300 (9th Cir. 1971): [Aj violation of Section 8(a)(3) . . . may be found where an employee is discharged because he has This is Van ))ke's credited ersion of the Roberts conversation Rob- erts testified that he "might hase mentioned a couple names," but did not think he mentioned Van )vyke as a. possibility. sought with the aid of his union . . . to protest the amount of his pay or his working conditions. That Respondent's motivation was as just stated is shown by a number of factors: (a) Its no longer using Van Dyke after February 10 coin- cided to the day with the Union's intervention on his be- half. (b) It continued to rely heavily on casuals after February 10. (c) It previously had used Van Dyke extensively. (d) Roberts admitted in his affidavit that Van Dyke's wage claim "had something to do with" his no longer being used. (e) Schuchardt told Van Dyke on February 13 that Re- spondent looked for employees "that created the fewest waves," and that Roberts had said Respondent would stop using Van Dyke if a grievance were filed. (f) Bauer's explanation for no longer using Van Dyke is altogether specious. It also is concluded that Schuchardt's February 13 re- marks to Van Dyke, just mentioned, violated Section 8(a)( ) as alleged. It is concluded, finally, that the record affords inade- quate grounds for inferring that Respondent's failure to include Van Dyke among those hired in late February and March was itself unlawfully motivated or derived from ear- lier unlawful conduct. Schuchardt's testimony that Van Dyke received no consideration doubtless was accurate, Respondent previously having determined, for an unlawful reason, to use him no more even as a casual. It is fair to infer, moreover, that he would have been considered but for the earlier unlawful stigmatization, in view of his stated interest in regular employment and Respondent's consider- able use of him as a casual. But that goes to the remedy for the earlier violation, rather than comprising a new viola- tion. To further infer that Van Dyke would have been cho- sen if considered, whether as a remedial proposition or as a distinct violation, would require an impermissible degree of speculation on the present record. CON(IL USIONS OF LAW I. By ceasing to use Van Dyke after February 10, 1978, as found herein, Respondent violated Section 8(a)(3) and (I) of the Act. 2. By Schuchardt's saying to Van Dyke on February 13, 1978, that Respondent looked for employees "that created the fewest waves," and that Roberts had said Respondent would no longer use Van Dyke if a grievance were filed, as found herein, Respondent violated Section 8(a)(1) of the Act. 3. Respondent did not otherwise violate the Act as al- leged. PACIFIC MOTOR TRUCKING COMPANY 987 ORDER 4 The Respondent, Pacific Motor Trucking Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Withholding work from Mark E. Van Dyke because of his efforts, directly and through the Union. to enforce a perceived wage entitlement under the prevailing labor con- tract. (b) Telling any employee that Respondent would no lon- ger use him should he file a grievance in aid of a perceived wage claim under the labor contract: and, in the same con- text, that Respondent looked for employees "that created the fewest waves." (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them under the Act. 2. Take this affirmative action: (a) Except as qualified by the next succeeding para- graph, resume its use of Van Dyke as a casual employee, in accordance with the practice that existed until February 10, 1978, and make him whole for any loss of earnings and benefits suffered by reason of its unlawful failure to use him after February 10, with interest added. 5 (b) Using only that information and those criteria that existed and obtained in late February and March 1978, when Respondent hired four casual employees as proba- tionary regular employees, determine if Van Dyke would 4 All outstanding motions inconsistent with this recommended Order hereby are denied. In the eent no exception, are filed as provided h Sec 102.46 of the Rules and Regulations of the National Lahor Relations Board. the findings. conclusions, and recommended Order herein shall. as pro,,ided in Sec. 102.48 of the Rules and Regulations. he adopted hs the Board aind become its findings. conclusions. and Order. and all ohectlions thereto hall be deemed waived for all purposes Backpay is tlo be computed n accordance wlth F: : B f 1ioorih (r,,,- pan. 90 NLRB 289 1950). with interest to he computed i1 the mlanner set forth in Florida Srte/ ( orporioin, 231 NI.RB 6h51 1977) See gcnerll /sIt Plumbhing & Heating ( . 13R NlRB 716 t 19r62 have been among those chosen except for his previously having been unlawfully removed from the casual roster. (il If such determination is favorable to Van Dyke, offer him immediate hire as a probationary regular employee and make him whole for any loss of earning and benefits suffered b reason of the failure to so hire him at the earlier time, with interest added.h (it) If such determination is adverse to Van DN ke. inform him in writing of precisely that information and those crite- ria relied upon to reach that result. (c) Preserve and, upon request, make available to the Board or its agents. for examination and copying, all pa5- roll records, social security pa ment records, timecards, personnel records and reports. and all records necessary to analyze the amount of backpay and benefits owing under the terms of this Order. (d) Post at its terminal in Tucson, Arizona. the notice which is attached and marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 28. after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken b Respondent to ensure that the notices are not altered, defaced. or covered by any other material. (d) Notify the Regional Director for Region 28. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. That allegation of the complaint found to be without merit is dismissed. See precelltn foililtle 11 the serii that lhi ()rsler elnfsOrcdy h\ a Idell lill 'If the t nited States ( lur of Appeals. the word, in the nritice reading "io,ted h Order iof Ihe Ntllolal Libhor Reltli , B)oard" slh;ll rea;ld Pol d Piurs.int to a Judgmentl f the I nited Stalte (llrtl f .ppeals -nflorrin an Order of the Natilotal Labhor Rel.itilot, Board"