Trinity Trucking & Materials Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1977

227 N.L.R.B. 792 (N.L.R.B. 1977)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trinity Trucking & Materials Corp . and Lloyd Joy.
Case 25-CA-6402
January 7, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On May 28, 1976, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding.' Thereafter, Respondent filed excep-
tions and a supporting brief, and Charging Party and
General Counsel filed briefs 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
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Trinity Trucking
& Materials Corp., Terre Haute, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
dent, violated Section 8(a)(1) and (3) of the Act by
discharging Lloyd Joy, Wallace Simmons, and Jack Gib-
bens on July 5, 1974 (after having also allegedly violated
Section 8(a)(1) on July 3 by threatening to discharge them)
because of their union and concerted activities, specifically,
a civil action they filed against Respondent and its
principal customer seeking damages for lost wages. Re-
spondent denied the commission of any unfair labor
practices, and in a memorandum supporting its motion for
summary judgment sought to persuade the Board to defer
to an arbitration award of February 27, 1975, denying the
discharge grievances of the employees, pursuant to the
policy enunciated in Spielberg Manufacturing Company, 112
NLRB 1080 (1955). After observing that no dispute exists
concerning most of the facts which give rise to this
proceeding, the Board held that the arbitrator's award was
repugnant to the policies of the Act, since he based his
decision on his fmding that the discharges were imposed by
the grievants' refusal to withdraw that portion of their civil
suit which sought punitive damages, an act of disloyalty he
concluded was not protected by the Act. The Board
reaffirmed the controlling principle of law discussed in
Leviton Manufacturing Company, Inc., 203 NLRB 309
(1973), ignored by the arbitrator, that the filing of a civil
suit by a group of employees is protected activity unless
prompted by malice or bad faith. Since the arbitrator made
no bad-faith finding, although Respondent had advanced
the argument, the Board found "that the motive of the
employees in filing their lawsuit remains a crucial and
unresolved issue in this case," and remanded this matter for
a hearing.
Upon the entire record in this case, including my
observation of the witnesses, and upon the consideration of
the briefs filed by all parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
1 The Board's original Decision and Order in this case was reported at 221
NLRB 364 (1975).
2 The Respondent has 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 credibili-
ty 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
RICHARD L. DENISON, Administrative Law Judge: This
case was heard on February 24, 25, and 26, 1976, in Terre
Haute, Indiana, pursuant to a Decision and Order of the
National Labor Relations Board, dated November 5, 1975,
reported in 221 NLRB 364, wherein the Board denied
motions for summary judgment by both the General
Counsel and Respondent, and ordered that a hearing be
held for the purpose of receiving evidence on the issues
raised by the allegations of the complaint. The complaint
alleges that Trinity Trucking & Materials Corp., Respon-
227 NLRB No. 121
As admitted in the answer, I find that at all times material
herein Respondent is and has been an Indiana corporation
maintaining its principal office and place of business at
Terre Haute, Indiana, where it is engaged in the business of
performing hauling services for construction materials.
During the past year, a representative period, in the course
and conduct of its business operations, Respondent pur-
chased, transferred, and delivered to its Terre Haute facility
goods and materials valued in excess of $50,000 directly
from points outside the State of Indiana. In addition,
during the same period of time, Respondent furnished
hauling services valued in excess of $50,000 to Indiana
firms, each of whom purchased and caused to be shipped to
their respective locations in the State of Indiana goods and
materials valued in excess of $50,000, and either manufac-
tured, sold, and shipped from their respective locations
goods valued in excess of $50,000 directly to points outside
the State of Indiana, or sold at retail goods and materials
valued in excess of $500,000. I therefore find that Respon-
dent is now, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
TRINITY TRUCKING & MATERIALS CORP. 793
II. THE LABOR ORGANIZATIONS INVOLVED*
As admitted in the answer, I find that Teamsters,
Chauffeurs,, Warehousemen & Helpers, Local Union No.
144, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereafter referred to as Local 144, is, and has been
at all times material herein, a labor organization within the
meaning of Section 2(5) of the Act. -
Based on undisputed evidence adduced at the hearing, I
also find that Indiana Conference of Teamsters, affiliated
with the International Brotherhood of Teamsters, Chauff-
eurs , Warehousemen and Helpers of America, hereafter
referred to as the Indiana Conference, is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Undisputed Facts
Respondent, which until sometime during 1973 did
business under the name of Gibson Coal & Supply
Company, Inc., has at all times material herein been
engaged in the business of hauling construction materials in
Vigo County, Indiana. The city of Terre Haute is the
county seat of Vigo County. Respondent utilizes both its
own trucks driven by employee drivers and, when needed,
trucks leased to it by owner-operators. Alleged discrimina-
tees Lloyd Joy and Wallace- Simmons perform work for
Respondent in both of these two categories, while alleged
discriminatee Jack Gibbens always operated a company
truck. Joy, Simmons, and Gibbens are all members of Local
144 which first signed a 1-year collective-bargaining agree-
ment with Respondent in September 1972, later extended to
March 6, 1974, at which time the current agreement,
terminating January 31, 1977, was executed.
An overwhelming majority of Respondent's hauling
services are performed for Wabash Valley Asphalt Co.,
hereafter called Wabash, a Terre Haute, Indiana, company
engaged in the business of manufacturing asphalt and
constructing asphalt roads and parking lots. Since at least
1962, Respondent and - Wabash have maintained this
business relationship on the basis of an annual . rate
quotation by Respondent. Wabash is a member of the
Indiana Highway Constructors, Inc., an employer associa-
tion which bargains collectively on behalf of its members
and has a statewide contract with the Indiana Conference
of Teamsters. The current agreement, commonly known as
the Blue Book, is effective from May 1, 1974, to -April 30,
1977. This agreement was preceded by two other agree-
ments to which Wabash was bound, the Red Book effective
May 1, 1971, to April 30, 1974, and the Black Book effective
January 1, 1968, to December 31, 1970. The Black, Red,
and Blue Books each 'specify wage rates and truck rental
rates exceeding those rates paid, during the comparable
period of time, by Respondent to its drivers and owner-
operators. In addition, the Black, Red, and-Blue contracts
contain clauses relating to the scope of the work covered by
these agreements, which refer to "subcontractors, trucking
companies who contract with -the Employer and all owner-
operators who contract with, lease or rent to the Employ-
er ...."1
Lloyd Joy began working for Respondent in May or June
1968 as an owner-operator. He also leased one additional
truck to the Company. Later, in January 1974, he ceased
renting trucks to Trinity, and for the,- remainder of his
employment drove Respondent's trucks. Wallace Simmons
first became employed by Respondent in 1967 and thereaf-
ter, at various times until-his discharge, was paid as a driver
and owner-operator. Jack Gibbens started his employment
with Respondent in 1971 as a company driver and was
never employed as an owner-operator. Most of the hauling
work performed by 'these employees- was with respect to
Wabash jobs. Although Gibbens never served in any
official capacity with Local 144 after it was recognized by
Trinity in the fall of 1972, Lloyd Joy served on the
committee which negotiated _ the first agreement signed in
September 1972, and again in 1973, and as steward until
April 1973. Simmons also served on the negotiating
committee for the current agreement . Sometime after the
signing of Respondent's initial contract with Local 144, Joy
first obtained a copy of the Red Book, and based on the
testimony of Respondent's former vice president, Max
Gibson, Joy, and Simmons, it appears that in late 1972 a
dispute arose between Joy and Respondent, in which the
Union became embroiled, concerning Trinity's liability to
pay Red Book wage and rental rates. The president of
Local 144, George Hanks, testified that the Union "made
repeated suggestions" that Trinity should sign the Red
Book. Although the exact dates and sequence of all the
events in this lengthy economic battle - are somewhat
unclear, the significant milestones on Joy, Simmons, and
Gibbens' journey toward litigation and-termination may be
identified. At one point in 1972 or 1973 Max Gibson met
with all the Trinity drivers and orally agreed to pay Red
Book rates for deliveries to Indiana State highway jobs. The
dispute continued, and during the negotiations which
resulted in Trinity's separate 1974 agreement with Local
144, it is clear that Joy led a faction in favor of striking to
force Respondent to "sign the Red-Book!" However, when
a vote was taken at -a union meeting, this course of action
was, rejected and the membership voted to accept the
negotiated contract. Throughout this turmoil Joy continued
to maintain that the wording of certain Red Book clauses,
in any event, obligated Trinity to pay Red Book rates.
Moreover, according to George Hanks, the Local Union
also has maintained this position since 1972.
As events developed, despite his oral side agreement with
the Trinity drivers, Gibson did not pay Red Book rates for
any work performed for Wabash and adopted a firm
position that the Red Book did not apply to Respondent.
On May 13, 1974, Joy filed a grievance seeking the
difference in the wages he received on the "Burnett
Pavement" job "5-1-74 and 5-2-74." Joy filed a second
grievance on May 31, 1974, concerning work performed on
the Burnett pavement job and the Highway 63 and
Woolworth parking lot jobs. Respondent settled these
grievances by paying Joy the difference in the wage rates,
1* Both labor organizations herein intervened in this proceeding. I Quote from art. II, sec. 2(c) of the Red Book. See also art. II, sec. 1, sec.
2(a); and art. XXI, sec. 1.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except that with respect to the May 31 grievance Respon-
dent refused to pay that portion of Joy's claim which fell
outside the limitations period of the contract. Thereafter,
Trinity drivers did not receive the wage rates specified in
the Blue Book, which succeeded the Red Book effective
May 1, 1974. After discussing the situation with Simmons
and Gibbens, Joy suggested asking the advice of Attorney
Gerald McGlone who advised them to file a damage suit
seeking both compensatory and punitive damages. On June
29, 1974, a suit was filed in Vigo County Superior Court for
$40,000 compensatory- and $200,000 punitive damages
against both Respondent and Wabash.2 Upon learning of
the filing of this lawsuit and of Wabash's displeasure with
having become involved in the .controversyrs between Trinity
and its employees, on July 3;,Max Gibson handed each of
the employees a copy of the following letter:
Mr. Lloyd Joy
Mr. Wallace W. Simmons
Mr. Jack Gibbens
with "intentional, malicious, oppressive, and heedless
disregard of the rights of the plaintiff', and the prayer
to the extent that it purports to impose punitive
damages, are withdrawn within forty-eight hours of
your receipt of this letter and due notice of the
withdrawal of those charges is given to the employer
and to Wabash Valley Asphalt Co., Inc. -
Pursuant to Article X of the Collective Bargaining
Agreement, we are providing a copy of this letter to
your bargaining representative, Teamsters' Local #
144.
Very truly yours,
TRINITY TRUCKING & MATERIALS CORP.
By Roger McDonald , President
At the expiration of the 48-hour period each of the three
employees refused Respondent 's demand, and each was
discharged.
Gentlemen:
It has come to our attention that you have filed a
complaint in the Vigo County Superior Court, Cause
No. S-7424, against your employer, Trinity Trucking
& Materials Corp ., as well as against one of its good
customers, Wabash Valley Asphalt Co., Inc. That
complaint, in addition to alleging the right to greater
wages, accuses both the company, your employer, and
its good customer, Wabash Valley Asphalt Co., Inc., of
intentional , -malicious and oppressive conduct in heed-
less disregard of your rights and seeks punitive damages
totaling $200,000 (over and above compensatory dam-
ages). These claims for punitive damages and charges of
gross and wanton illegal conduct against your employer
and against its good customer are unwarranted and go
far beyond making an ordinary claim for wages. Such
charges are devastating to the company's continued
business and good will. Further, it is apparent from the
extent of punitive damages claimed that you are seeking
to destroy your employer financially , and are not
seeking to have an. apparent disagreement over wage
rates resolved in the spirit of preserving a continuing
harmonious employment relationship. These charges
and claims for punitive damages constitute gross
insubordination and extreme disloyalty to the employer
and to the common enterprise of workers and manage-
ment and are wholly inconsistent with your continued
employment by Trinity Trucking & Materials Corp.
Thus, this letter is to serve as a formal written
warning, pursuant to Article X of the Collective
Bargaining Agreement now in effect between Trinity
Trucking & Materials Corp. and Teamsters' Local #
144, that you will be discharged for insubordination and
extreme disloyalty to the company and to the common
enterprise, unless that part of your complaint in the
above action in purporting to charge the company and
its good customer, Wabash Valley Asphalt Co., Inc.,
2 The plaintiffs contend that under the common law of the State of
Indiana, Trinity and Wabash are jointly and severally liable for back wages
not paid under the Black Book and the Red Book contracts , and that
B. The Disputed Evidence Concerning the Issue of
Malice and Bad Faith
No dispute existed concerning the facts summarized
above. The only real issue in this case (indeed the crucial
issue, referred to by the Board) is whether or not Joy,
Simmons, and Gibbens filed their suit with malice and in
bad faith. Respondent's affirmative defense is a claim that
they maliciously intended to destroy Trinity, and in support
of this position the following testimony was offered.
Joseph Lee Manuel, a city fireman, who also works for
Trinity on alternate days together with his brother Russell
Manuel, Jr., -testified that on June 25, 1974, at the
Shepardsville asphalt plant he overheard a portion of a
conversation between Lloyd Joy and Henry Glasgow in
which Joy said, "I'm tired of Gibson screwing me. If I had
my way, they'd pay the price. If I could, I'd close down
them." Glasgow was repairing a tire on Joy's truck at this
time. Henry Glasgow testified that he had a conversation
with Joy on State Road 63 north of Shepardsville, while
repairing Joy's truck, in which Joy said he was tired of
Gibson screwing him, and if he had his way he would put
him out of business. However, Glasgow did not mention
Joseph Manuel being present in the vicinity at the time of
the conversation.
Russell Manuel testified that in the spring of 1973 (he was
uncertain about the date) during a discussion with Joy
about the Company, which occurred on the Paris Road, Joy
said, "they didn't deserve to be where they was at now, and
if he had his way he would break them-he would take this
to the National Labor Relations Board."
Lloyd Joy denied ever making any remark to any fellow
employee about permanently closing down the Company.
He agreed that during the 1973-74 negotiations for the
current contract he argued strongly for a strike to "shut
down" the Company to force them to pay the Red Book
scale. Joy acknowledged having a conversation with Henry
Glasgow- at the Shepardsville plant while a tire was
punitive damages are recoverable since the defendants' action was intention-
al, malicious, oppressive, or in heedless disregard of the plaintiffs' rights.
TRINITY TRUCKING & MATERIALS CORP.
changed, which Glasgow began by asking, "Lloyd, what's
the matter with you and Max?" Joy answered, "Henry, only
one thing . He won't pay the scale. He won't pay what the
book calls for, and that's all." Glasgow responded, "Well, if
he owes it , why don't he pay it?" Joy ended the discussion
by saying, "Hell, I don't know. Why don't you ask him?"
According to Joy, Joseph Manuel was not present or in the
area. I credit Joy's version. Firstly, as Joy himself related, it
is simply illogical that Joy would want to put Trinity out of
business , thereby destroying his job and those of other
drivers whose wage rates he sought to increase. Secondly,
Joseph Manuel's version and Henry Glasgow's version of
the Glasgow-Joy Conversation differs in significant re -
spects , specifically, the location, the words used, and the
omission by Glasgow of any mention of Joseph Manuel's
presence in the vicinity. Thirdly, Joy's account and expla-
nation is consistent with other evidence in the record,
including the testimony of Harry V. Rogers, Jr., assistant
business agent of Local 144, which shows Joy had been
vocal about "closing down" Respondent, in the form of
strike action, until Trinity paid the Red Book rates . Finally,
Joseph Manuel exhibited a sharp hostility toward Lloyd
Joy while testifying, which was later explained on cross-
examination , when it was revealed that Joy had objected to
the Company's treating the Manuel brothers as one full-
time employee for seniority purposes.
However, I credit the testimony of Russell Manuel, Jr.,
whose demeanor while testifying, unlike his brother,
displayed no resentment toward Joy. Russell' s answers
on cross-examination concerning the seniority disagreement
with Joy persuaded me that his testimony had not been
influenced by that event. Furthermore, Joy agreed that he
had a conversation with Russell in the spring of 1973 in
which he talked about striking Trinity and "closing" or
"breaking" the Company to force the Company to pay the
wage rates Joy believed were applicable to employees. His
reference to seeking relief through the Board can only be
construed in this vein. In this respect I find Joy's testimony
about the incident does not conflict with that of Russell
Manuel . Likewise, I find Joy's explanation consistent with
the testimony of Local 144s president, George Hanks,
called as a witness by that Intervenor. On cross- examina-
tion by Respondent, Hanks credibly testified as follows:
Q. Have you ever heard Lloyd Joy say that he was
going to do Max Gibson in or Trinity in or run him out
of business or any statements of that kind, to the best of
your recollection?
A. I can remember a statement, yes.
Q. Would you tell the Administrative Law Judge
when that statement took place, where it took place and
who was there as best you can remember?
A. It was a statement - I don't know.
Q. What year?
A. As per year, per day or anything of this nature;
however, there was a statement made in my office in the
presence of Harry Rogers . Joy made the statement to
me that he was going to break them or own them.
3 As argued by Intervenor Local 144 in its brief, these are not questions to
be decided in this proceeding However, contrary to the Intervenor's
position , I find it unnecessary to pass upon these issues in order to decide
795
Q. Was this statement made prior to their discharge
- strike that.
Was this statement made prior to June 28th, 1974,
which is the date the civil law suit was filed?
A. Yes.
MR. CLINE: No further questions.
Although Hanks was unable to fix the time of his conversa-
tion with Joy, Russell Manuel's testimony and that of Joy
clearly indicates that the remark was made in 1973 when
Joy was pressing the Union to strike Respondent for Red
Book rates, and I so find.
There is one other portion of testimony concerning
alleged remarks by Joy. Alleged discriminatee Jack Gib-
bens, called as a witness by Respondent under rule 611(c)
of the Federal Rules of Evidence, was examined concerning
an undated, unworn prepared statement he (and three
other persons not called as witnesses) signed, at Max
Gibson's request in his office, concerning shutting down
Gibson. I find this evidence totally unreliable as support for
Respondent's defense, since Gibson admitted pressuring
Gibbens by saying, "Jack, I need a favor now. If you'd give
me a favor, maybe I can give you one sometime in the
future." Under these circumstances , Gibbens testified that
he was afraid of losing his job if he turned Gibson down.
C. The Contentions of the Parties, Discussion, and
Concluding Findings
The General Counsel and the Charging Party urge that
Joy, Simmons, and Gibbens filed their lawsuit upon the
advice of their attorney, only when it became evident that
other avenues through which relief might be sought were
for all practical purposes unavailable; consequently, they
acted in good faith. Respondent contends that the alleged
discriminatees filed their lawsuit with malice and bad faith
within the meaning of the Board's Leviton decision, thereby
forfeiting the Act's protection. Respondent argues that
Simmons' and Gibbens' failure to use the grievance
procedure in Local 144s collective-bargaining agreement
with Trinity with respect to their wage claim and Joy's
failure to file periodic grievances for wages, while all three
men immediately grieved over their discharges, proves bad
faith. I cannot agree. Rather it appears from the evidence
considered as a whole that the alleged discnminatees'
earlier inaction is largely attributed to Respondent's
longstanding position that the Red Book was not applicable
to Trinity, hence raising the existence of substantial legal
questions concerning whether relief relating to that agree-
ment could be obtained under the grievance and arbitration
clause in the Company's contract with Local 144.3 More-
over, Respondent's later failure to honor its oral commit-
ment to pay the Red Book rates, coupled with its assertion
of the limitations period against Joy, when he did in fact file
grievances, in a manner which would force him to file
weekly grievances or forego his claim, is not the type of
conduct which would Inspire employee confidence in the
ability to recover back wages through the grievance
machinery. When considered against this background, the
whether Joy, Simmons, and Gibbens acted in good faith for the purposes of
the instant case
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that Respondent settled Joy's May 13 grievance and a
portion of the May 31 grievance carries no real significance
with respect to Respondent's defense, even though the three
employees filed their civil suit almost immediately thereaf-
ter.
Respondent contends that the statements made by Joy to
employees, discussed earlier in this decision, show malice
and bad faith. I disagree. Firstly, it should be noted there is
no evidence that Simmons and Gibbens ever voiced their
feelings on the wage issue to fellow employees. Secondly,
the credited evidence concerning Joy's remarks fails to
show that one of his objectives was to injure Trinity and
destroy its relationship with Wabash. Instead, as the
General Counsel contends, these remarks show Joy's
increasing irritation and frustration over Trinity's failure to
pay the Red Book rates, and his desire to force them to pay
what Joy believed was lawfully owed to him and his fellow
employees. This conclusion is reinforced by the fact that
remarks were made in 1973 and early 1974, when the Red
Book issue was the- subject of such discussion in contract
negotiations and in the consideration of possible strike
action. In this context such words as Joy used acquire a
specialized and limited significance not -indicative of a
desire to permanently injure or destroy Respondent's
business.
Lastly, Respondent urges that the filing of the $40,000
lawsuit against their employer and his best customer
seeking, in addition, $200,000 punitive damages, itself
shows bad faith and malice. I cannot agree. The evidence
shows that the civil suit -was filed by their attorney, who
advised them that such a course of action was a feasible
means of obtaining the redress they sought. I find it
inappropriate for me to pass upon the applicability of the
Red and Blue Books to Respondent, or to presume to
decide the validity of either the legal theory upon which the
civil suit is based or the request for punitive damages. These
are issues for another forum. Moreover, it is unnecessary, to
a consideration of whether' Joy, Simmons, and Gibbens
engaged in protected concerted activity by filing their suit,
to decide these questions. As the Board observed in its
Decision remanding this case for hearing:
Rather, the arbitrator, in finding the discharges justi-
fied, relied on the fact that the employees brought a
lawsuit rather than grieving under the collective-bar-
gaining agreement and that they requested (and failed
to withdraw their claim for) punitive damages in their
lawsuit. However, if the right of employees to file a
labor-related lawsuit is a protected activity, the fact that
the suit is filed cannot establish bad faith. Further,
although the governing principle of law does not
preclude an examination of the civil suit and its
attendant pleadings, we do not fmd it particularly
significant that the employees sought punitive damages
in their civil action. The pleadings do not decide the
lawsuit, and the merits of the lawsuit, including the
matter of remedies, are best left to the court hearing the
lawsuit. The protected right of employees to file a civil
action would be seriously diluted should we, based on
the pleadings in the suit, decide that certain aspects of
the suit are without merit and therefore establish bad
faith. If the lawsuit is filed in good faith, the fact that it
may have been goundless or that it was later dismissed
on the pleadings would not in itself make the activity
unprotected or establish bad faith. Cf. Walls Manufac-
turing Company, Inc., 137 NLRB 1317 (1962). Further,
the discharges are not justified because the Respondent
sincerely believed the action to have been brought in
bad faith if the suit was actually brought in good faith.
The General Counsel and the Charging Party have
proved that the alleged discriminatees filed their lawsuit
upon the advice of their attorney based, as shown by an
examination of the attendant pleadings, on an arguable
legal theory; and that Joy, Simmons, and Gibbens were
threatened with discharge on July 3 and discharged on July
5, when they refused to withdraw the punitive damage
feature of their civil action. It thus became incumbent upon
Respondent to come forward with evidence to prove, under
the Board's Leviton decision, that the three employees acted
with malice and bad faith, thereby rendering their conduct
unprotected. I find that Respondent has not sustained its
burden, and that Joy, Simmons, and Gibbens,were engag-
ing in protected concerted activity under the circumstances
presented. Thus, Respondent's action in threatening to
discharge them on July 3, and the discharges themselves on
July 5, violated Section 8(a)(1) of the Act .4
CONCLUSIONS OF -LAW
1. Respondent is an employer engaged in commerce
within the meaning -of Section 2(2), (6), and (7) of the Act.
2. The Local 144 and Indiana Conference are labor
organizations within the meaning of Section 2(5) of the Act.
3. By threatening Lloyd Joy, Wallace Simmons, and
Jack Gibbens with discharge on July 3, 1974, if they refused
to withdraw that portion of their civil suit which sought
punitive damages, Respondent violated Section 8(a)(1) of
the Act.
4. By discharging Lloyd Joy, Wallace Simmons, and
Jack Gibbens because they filed a lawsuit against Respon-
dent which sought both compensatory and punitive damag-
es, Respondent discriminated against them because of their
concerted activities for their mutual aid or protection, in
violation of Section 8(a)(1) of the Act.
5. Respondent has not violated the Act in any respects
other than those specifically found.
6. The aforesaid' unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE R nl mDY
Having found that Respondent is engaged in certain
unfair labor practices , I fmd it necessary to order that
Respondent cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
4 I -find it unnecessary to determine whether the Respondent's conduct not Wabash Valley Asphalt Co. is ajoint employer of Respondent's drivers
also violated Sec. 8(aX3) of the Act, since the appropriate remedial
provisions are the same I also find it unnecessary to determine whether or
when Respondent is performing work for Wabash.
TRINITY TRUCKING & MATERIALS CORP. 797
Respondent having discriminatorily discharged Lloyd
Joy, Wallace Simmons, and Jack Gibbens, I find it
necessary to order that the Respondent offer them full
reinstatement with backpay computed on a quarterly basis,
plus interest at 6 percent per annum as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), from date
of discharge to date of proper offer of reinstatement. I shall
also order Respondent to post an appropriate notice with
respect to the violations of Section 8(a)(I) of the Act found
to have occurred.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDERS
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
5 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.
6 In the event that the Board's Order is enforced by a Judgment of a
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."
The Respondent, Trinity Trucking & Materials Corp.,
Terre Haute, Indiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging, threatening to discharge, or otherwise
discriminating against any employees for the purpose of
discouraging employees from engaging in concerted activi-
ty for their mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a)(3)
of the Act, as amended.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Lloyd Joy, Wallace Simmons, and Jack Gibbens
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings in the manner set forth in "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant at Terre Haute, Indiana, copies of the
attached notice marked "Appendix."6 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all -places where notices to employees are customarily
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the- United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law, and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT discharge or otherwise discriminate
against Lloyd Joy, Wallace Simmons, and Jack Gib-
bens, or otherwise punish employees because they have
engaged in concerted activities for their mutual aid or
protection.
WE WILL offer Lloyd Joy, Wallace Simmons, and
Jack Gibbens immediate and full reinstatement with
backpay.
WE WILL NOT threaten employees with discharge or
other reprisals if they engage in concerted activities for
their mutual aid or protection.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to self-organization, to form, join, or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities' for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent
that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section
8(aX3) of the Act, as amended.
TRINITY TRUCKING AND
MATERIALS CORP.