Redwood Construction Co., Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1974

214 N.L.R.B. 464 (N.L.R.B. 1974)

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redwood Construction Co., Inc. and Brotherhood of
Teamsters , Warehousemen & Auto Truck Drivers,
Local 684, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 20-CA-8960
October 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On May 30, 1974, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief. Respondent filed an
answering 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, as
modified herein, and to adopt his recommended Or-
der.
The General Counsel contends that Maciel's dere-
liction of duty in his job was used by Respondent as
a pretext to discharge him because of his testimony
at an unfair labor practice hearing before the Board,
in support of charges against Respondent which the
Board sustained. To support this contention, the
General Counsel relies upon the timing of the dis-
charge, and the assertion that Maciel received dispa-
rate treatment. We do not agree.
As the Administrative Law Judge found, the rec-
ord shows that Respondent had issued specific in-
structions to its drivers that they were "to load legal
loads and drive legal speeds." The record shows that
cold weather impaired most of the truck scales which
Respondent's drivers used to prevent overloads, and
that some drivers, cognizant of this fact, "loaded
light" when in doubt about the legality of their loads.
Respondent viewed overweight citations for small
overloads as routine but viewed overload citations
exceeding 5,000 pounds as inexcusable. During the
history of Hoopa division, in which Maciel was em-
ployed, there had only been two citations, each by a
different driver, for overloads in excess of 5,000
pounds. Maciel, however, was cited for an overload
of 8,100 pounds in August 1973 and for an overload
of 9,600 pounds in October of the same year. Then,
on consecutive days, February 7 and 8, 1974, Maciel
received separate overload tickets from the same po-
lice officer for being overloaded 7,600 pounds and
10,100 pounds, respectively. Morris, a loader opera-
tor, testified that, normally during loading, a part of
every driver's job is to get out of his truck and watch
its far side (which the loader cannot see) to make
sure that he is not overloaded, over width, or over
height. Morris testified, however, that Maciel not
only did not get out of his truck three times out of
every five, but also that he did not pay attention to
his scales or the loading of his vehicle. Finally, the
California highway patrolman who cited Maciel for
his last two overload violations reported to his lead-
man, Ullfers, that his "attitude was terrible," that he
"just didn't care." Respondent believed at the time of
the discharge that Maciel's tickets would cost Re-
spondent in excess of $1,000, a belief confirmed by
notification from the justice court in Burney that
the fines would be about $1,300.
There is no direct evidence in this record that Re-
spondent harbored any resentment against Maciel
for his testimony against it in the prior unfair labor
practice proceeding. Nor does the record show dispa-
rate treatment of Maciel. He was the only driver in
the Hoopa division to receive more than one citation
for being more than 5,000 pounds overweight-in
fact, he had four citations in 7 months. And contrary
to the General Counsel's contention, the timing of
the discharge is more clearly consonant with its as-
serted cause since it follows immediately after the
citation for 7,600 pounds and then for 10,000 pounds
on successive days, rather than his testimony in the
Board proceeding. Nor is there any significance in
the failure of Maciel's truck scales, if there was such
a failure, since it is clear that all the drivers were
affected by the same problem and hence took the
precautionary measure of watching the loading oper-
ation and if necessary taking lighter loads, which
Maciel simply refused to do.
Under all of the above circumstances we cannot
find, as the General Counsel would have us do, that
Maciel was discharged on a pretext rather than for
cause.
Accordingly, we shall adopt the Administrative
Law Judge's recommended order dismissing the
complaint herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
214 NLRB No. 76
REDWOOD CONSTRUCTION CO., INC. 465
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This case
was tried before me in Eureka, California, on April 23,
1974. The charge was filed February 19, 1974, by Brother-
hood of Teamsters, Warehousemen & Auto Truck Drivers,
Local 684, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein
called the Union). The complaint issued March 20, 1974,
was amended April 12, and alleges that Redwood Con-
struction Co., Inc. (herein called Respondent), has violated
Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act.
The parties were given opportunity at the trial to intro-
duce relevant evidence , examine and cross-examine wit-
nesses, and argue orally. Briefs were filed for the General
Counsel and Respondent.
1. ISSUE
The issue is whether Respondent 's discharge of its em-
ployee , George Maciel , on February 11, 1974, was prompt-
ed by his having testified in an NLRB trial or otherwise
having engaged in activities protected by the Act, violating
Section 8(a)(4), (3), and (1).
II. JURISDICTION
Respondent is a California corporation engaged in the
hauling of logs and other wood products out of facilities
located in Hoopa, Samoa, and other locations in Califor-
nia. It in the past year performed services of a value ex-
ceeding $50,000 for Georgia Pacific Corporation, which in
turn annually brings goods of a value exceeding $50,000
into California directly from outside the state.
Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in and affecting commerce
within the meaning of Section 2(6) and (7).
III. LABOR ORGANIZATIONS INVOLVED
The Union and National Association of Independent
Unions (NAIU) both are labor organizations within the
meaning of Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACIICE
A. The Evidence
Background. The Union, by virtue of an NLRB certifica-
tion that issued in 1971,1 is the bargaining representative of
the truckdrivers working out of Respondent's operations at
Alderpoint, Dinsmore, and Samoa. California. On April 1,
1973, Respondent established a new division at Hoopa;
and, on March 15, petitioned the NLRB for an election to
determine if its Hoopa drivers were to be represented by
'20-RC-9453
the Union.' On March 20, claiming accretion, the Union
petitioned the NLRB that the existing certification be
amended to include the Hoopa Division without an elec-
tion .3 On April 11, NAIU also petitioned for an election
among the Hoopa drivers.4
The Board in Redwood Construction Co., Hoopa Division,
205 NLRB 1059 (1973), concluding that the Hoopa Divi-
sion was "a new and autonomous operation ," ordered that
an election be held as requested by Respondent and
NAIU, and that the Union's petition for amendment be
dismissed. The election was held September 27, 1973, 14
voting for NAIU, 9 voting for the Union, and none voting
against representation. The Union, on October 4, filed ob-
jections to the election, alleging that Respondent by certain
preelection conduct had interfered with free voter choice;
and, on November 14, filed an unfair labor charge against
Respondent, alleging substantially the same conduct as vi-
olative of Section 8(a)(1).5
On December 21, 1973, the Regional Director for Re-
gion 20 of the NLRB issued a complaint in the unfair labor
practice case, an order in the representation case referring
the kindred objections issued to an administrative law
judge, and an order consolidating the two matters for hear-
ing. The complaint alleged in substance that Respondent
had violated Section 8 (a)(1) by engaging in unlawful inter-
rogation, by threatening to shut down for the winter and to
discharge an unnamed employee should the Union win the
election, and by promising to offer more generous contract
terms should NAIU prevail.
A hearing on the cases as consolidated was held Febru-
ary 5, 1974, before Judge Irving Rogosm. Maciel, the ag-
grieved employee in the present case, testified.6 Judge
Rogosin's decision issued May 15, 1974.' Based in part on
Maciel's testimony, he found that Respondent had violated
Section 8(a)(1) in certain particulars, and recommended
that the election be set aside.
Maciel was discharged February 11-i.e., 6 days after
testifying before Judge Rogosin. The General Counsel's
principal contention is that the discharge decision was
prompted by Maciel's witness stand performance. Respon-
dent denies that, asserting that the discharge was triggered
by the aggregate of Maciel's breaking a window in his
truck February 6 and being cited by the California High-
way Patrol February 7 and again February 8 for hauling
illegally heavy loads.
Facts Immediate to the Discharge. Maciel was employed
by Respondent from March 28, 1973, until the discharge in
question . He was a shopman and occasional driver until
August, when he began driving logging trucks full time.
In his testimony before Judge Rogosin February 5, Ma-
ciel stated that he had heard Boudro say, before the elec-
tion, that "he could almost promise a better contract" if
NAIU were voted in; and that there would be less work for
Respondent's drivers if the Union won because "a lot of
the mills were scared of the Teamsters, and they did not
' 20-RM-1601
J 20-AC-22
20-RC-11317
'20-CA-8747
6 Transcript pp 87-104
7 JD-(SF)-85-74
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to get involved with RC [Redwood Construction] if
we were part of the Teamsters." 8 Maciel additionally testi-
fied of once having said to Boudro that the season would
be over in a month or month and one-half, prompting Bou-
dro to answer, "That depends the way the election goes." 9
Respondent started hauling logs in the Burney, Califor-
nia, area in October 1973. Maciel joined the Burney drivers
in December. Roy Ullfers, a leadman, so-called, was in
charge at Burney, subject to direction from Dale Boudro,
Respondent's Hoopa Division manager. Boudro's office
was in Hoopa, some 160 miles away.10 The Burney crew
was on layoff for 2 or 3 weeks in January and early Febru-
ary, but was recalled February 5-i.e., later the day Maciel
testified before Judge Rogosin-to resume work February
7. Maciel was included in the recall.
Upon arriving at Burney the afternoon of February 6,
Maciel found himself locked out of his truck. To get in to
prepare the truck for the next day's run, he struck the rear
window with his hand. The idea was that the window, not
being fixed, would open on impact, permitting him to
reach through to the inside door handle. But, rather than
open, the window shattered, leaving a gaping hole and cut-
ting Maciel's hand.
The next day, February 7, Maciel received an overload
ticket from the California Highway Patrol while hauling a
load of logs. He was overweight 7,600 pounds. Although
citation for small overloads is routine and not a matter of
concern, it is Respondent's view that overloads exceeding
5,000 pounds are inexcusable." This was Maciel's third
such citation, having been cited August 15, 1973, for an
overload of 8,100 pounds, and October 2 for one of 9,600
pounds. Maciel expressed anxiety to the patrolman that
this third ticket might jeopardize his job, and asked that he
either shave the amount to under 5,000 pounds for purpos-
es of the ticket, or issue two tickets totaling 7,600 pounds.
The patrolman rejected both suggestions.
Maciel told Ullfers about the ticket and the broken win-
dow the evening of February 7. Regarding the ticket, Ull-
fers chided him for not parking the truck, if it seemed over-
loaded, and switching to a spare truck. Ullfers said nothing
about the window, assuming that it had been only cracked.
Ullfers informed Boudro of the ticket by telephone that
night, in the course of his daily report.
On February 8, Maciel received another overload ticket
from the same patrolman, the overage being 10,100
pounds. Maciel received his ticket in silence this time. Ull-
fers happened to be one truck behind Maciel at the weigh-
ing station; and the patolman told him that Maciel's "atti-
tude was terrible" and that he "just didn't care." Later that
day, Ullfers questioned Maciel about the ticket. Maciel re-
v
8 Transcript pp 93-94
9 Transcript p 97.
10 The complaint alleges both Boudro and Ullfers to be supervisors and
agents of Respondent The answer admits the complete allegation as to
Boudro, and it is so found The answer admits Ullfers' agency, but denies
supervisory status Based on the finding later in this Decision that Ullfers on
February 8, as an act of independent discretion, ordered Maciel to stop
driving for a week, it is concluded that he, too, was both a supervisor and an
agent
11
Although, in terms of job duty, the drivers are responsible for loading
lawfully, and, in terms of law, company and driver are jointly responsible, it
is Respondent's practice to hold its drivers harmless from overload fines
minded Ullfers of having told him some weeks before that
the hydraulic scales on his truck did not work, causing him
to misjudge his loads.'2 Ullfers, commenting that overload
tickets such as Maciel's recent two were expensive, directed
Maciel to park his truck and take the week off. 13
Boudro was at a logging conference in Reno, Nevada,
February 8 and 9, thus Ullfers did not inform him of
Maciel's latest ticket until the 10th. Ullfers also told him of
the patrolman's observations about Maciel's attitude, and
of the broken window, having since learned the extent of
damage. Boudro promptly decided to discharge Maciel, ar-
ranging that day for his replacement by one Paul Moon.
Later that day, Maciel telephoned Boudro, inquiring if Ull-
fers had yet called about him. Boudro replied, yes, that he
wished to talk to Maciel about it. They agreed to meet the
next day.
Boudro and Maciel met February 11 at a cafe in Arcata,
California. Mentioning the two tickets and the broken win-
dow, Boudro told Maciel he was fired. Boudro added that
the window was "minor," the tickets being "the main rea-
son." There was no reference to the trial before Judge Ro-
gosin.
Boudro credibly testified that he believed, at the time,
that Maciel's two tickets would result in fines totaling at
least $1,000. His apprehensions were well founded. He lat-
er was notified by the justice court serving the Burney area
that the fines would be about $1,300. With that as incen-
tive, and with Maciel's help, Respondent later obtained a
change of venue to a friendlier court, which imposed fines
of only $280.14 The window cost about $55 to replace. Bou-
dro testified that he was upset about the window only be-
cause "it seemed like an intentional thing."
Apart from Maciel's four citations for overloads exceed-
ing 5,000 pounds, there had been only two by
Respondent's Hoopa Division drivers from the division's
inception in early 1973 to March 1974: Derald Schultz,
10,600 pounds, October 2, 1973; and Dale Heaviside, an
undisclosed amount on an undisclosed date in October
1973. Three other drivers received overload citations at
Burney: William Gillespie, 1,500 pounds, February 8,
1974; James Myers, 1,100 pounds, February 8, 1974; and
William Welder, 3,000 pounds, February 7, 1974.
Maciel testified that the hydraulic scales on his truck
ceased working properly in January; that he mentioned the
problem to Ullfers; and that Ullfers told him to use his best
judgment to avoid overloads. The problem was not unique
to Maciel. Extreme temperatures impair the accuracy of
such scales and, in Ullfers' words, there was "an awful cold
snap" at Burney in January, reaching 23 below. Some of
the other drivers testified of the same problem, explaining
that they "loaded light" when in doubt. Ullfers tested the
scales on Maciel's truck after the discharge, ascertaining
that there was nothing wrong with them.
Maciel's replacement, Paul Moon, testified credibly and
12 Maciel admitted in his testimony concerning the February 8 ticket "I
had suspicions that I was a little overweight "
13 That Ullfers told Maciel to take the week off is based on Maciel's
testimony, contradicted by Ullfers. Maciel was corroborated by William
Gillespie, who testified of being told by Ullfers that Maciel had been or-
dered to take the week off
14 Boudro and others testified of the importance of avoiding overloads
when operating in unfamiliar territory
REDWOOD CONSTRUCTION CO, INC. 467
without refutation that Ullfers told him he was "a little
upset" over Maciel's testimony to Judge Rogosin. Ullfers
also told Moon, concerning Maciel's overloads, that Ma-
ciel "wasn't himself" and was "having more problems than
he ordinarily did."
There is no evidence that Respondent knew or suspected
Maciel to be sympathetic to the Union.
B. Analysis
Assuming for argument that Respondent mightily re-
sented Maciel's testimony before Judge Rogosin, and
whatever sympathies he might have harbored for the
Union, it nevertheless must be concluded that the dis-
charge was based on lawful considerations; namely, the
two overload tickets. The tickets followed the testimony in
time; carried a potential of large fines; and were received
in such quick succession and involved overloads so gross as
to reveal, in the patrolman's words, that Maciel "just didn't
care." 15 It cannot be said, moreover, that Respondent to-
lerated the same manner of dereliction by others. As
15 Concerning Maciel's attitude, it perhaps is significant that, although the
scales on his truck reputedly stopped working in January, he had no over-
load citations at Burney until the two mentioned Perhaps too , as Boudro
testified , the breaking of the window showed a certain lack of care
against Maciel 's four overloads exceeding 5,000 pounds,
including the two in 2 days, there were only two others in
the history of the Hoopa Division.
Respondent did not violate the Act as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in and affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and NAIU are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent's discharge of Maciel did not violate Sec-
tion 8(a)(1), (3), or (4) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 16
ORDER
The complaint is dismissed in its entirety.
16 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