Carolina Freight Carriers Corp.

National Labor Relations Board - Board Decisions

Sep 10, 1986

281 N.L.R.B. 440 (N.L.R.B. 1986)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carolina Freight Carriers Corporation and Louis
Reuter and Harold A. Carey, Jr. Cases 5-CA-
14097 and 5-CA-14320
10 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 12 March 1984 Administrative Law Judge
Irwin H. Socoloff issued the attached decision. The
Charging Party filed exceptions and a supporting
brief. The General Counsel filed exceptions, a sup-
porting brief, and a motion to remand and reopen
the record. The Respondent filed a brief in answer
to the exceptions of the Charging Party and the
General Counsel.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On 18 October 1984 the National Labor Rela-
tions Board issued a Notice to Show Cause' why
the Board should not adopt the decision and order
issued by the judge. Both the Respondent and the
General Counsel filed memoranda in response to
the Notice to Show Cause. Thereafter, the General
Counsel moved for revocation of deferral, sever-
ance of allegations, and remand to the judge,
which motion the Respondent opposed.
The Board has considered the decision and the
record in light of the exceptions , briefs, responses
to the Notice to Show Cause, the motion, and the
memoranda in opposition to the motion and has de-
cided to affirm the judge' s rulings, findings, and
conclusions and to adopt the recommended
Order.2
DECISION
STATEMENT OF THE CASE
IRwIN H. SocoLoFF , Administrative Law Judge. On
charges filed on February 22 and May 6, 1982, by Louis
Reuter and Harold A . Carey Jr., individuals , against
Carolina Freight Carriers Corporation (the Respondent),
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 5, issued an
amended consolidated complaint dated July 30, 1982, al-
leging violations by the Respondent of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the National Labor
Relations Act. Respondent , by its answer , denied the
commission of any unfair labor practices.
Pursuant to notice , trial was held before me in Balti-
more, Maryland , on November 8 and 9, 1982, and on
January 3, 4, and 5, 1983, at which the General Counsel,
Charging Party Reuter , and the Respondent were repre-
sented by counsel and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to
introduce evidence . Thereafter, the parties filed briefs
which have been duly considered.
On the entire record in this case, and from my obser-
vations of the witnesses , I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a North Carolina corporation, main-
tains an office and place of business in Elkridge, Mary-
land, where it is engaged in the interstate transportation
of freight . During the 12-month period preceding issu-
ance of the complaint, a representative period, it derived
gross revenues in excess of $50 ,000 from the transporta-
tion of freight and commodities between the State of
Maryland and points located outside that State. I find
that Respondent is an employer engaged in commerce,
and in operations affecting commerce , within the mean-
ing of Section 2(2), (6), and (7) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Carolina
Freight Carriers Corporation, Elkridge, Maryland,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order.
1 Chairman Dotson stated to the Notice to Show Cause that he would
adopt the judge 's decision without issuing the Notice to Show Cause
Members Johansen and Babson were not members of the Board when the
Notice to Show Cause issued Member Babson is of the view that the
Board 's Notice to Show Cause was improvidently issued
2 In view of our decision , the General Counsel 's motion is denied
Harvey A. Holzman , Esq., and Albert W. Palewicz Esq.,
for the General Counsel.
Melvin R . Manning, Esq., of Richmond , Virginia , for the
Respondent.
Joseph Keffer, Esq., of Washington , D.C., for the Charg-
ing Party Reuter.
II. LABOR ORGANIZATION
Freight Drivers and Helpers Union No. 557, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (the
Union), is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent's Elkridge (Baltimore area) facility
functions, essentially, as a relay terminal , that is, it re-
ceives freight from the Company's places of business lo-
cated in the Southern United States and, then, dispatches
that freight, using its Baltimore drivers, to points in the
Northeast. The Baltimore drivers, on their return trips,
bring loads to their home terminal, where the freight is
relayed to trucks bound for the Southern United States.
The Respondent employs, at Baltimore, some 47 over-
the-road drivers, in addition to its local drivers, and both
groups are represented by the Union and covered by a
281 NLRB No. 69
CAROLINA FREIGHT CARRIERS
collective-bargaining agreement containing grievance-ar-
bitration provisions.
The Baltimore over-the-road drivers receive assign-
ments referred to as "turns" and "layovers." Turns is the
term used to describe dispatches to areas geographically
close enough to Baltimore, such as New Jersey, Pennsyl-
vania, and New York City, as to permit the driver to
return to Baltimore on the same day, or same tour of
duty. Dispatches to more distant places, such as Massa-
chusetts, Providence, Rhode Island , and Hartford, Con-
necticut, are termed layovers because the driver is re-
quired to sleep at an out-of-town location before return-
ing to the home terminal. As the drivers are paid on a
mileage basis, the layover dispatches generally provide
greater earning opportunities and, for that reason, are
preferred by some drivers. Other drivers prefer "turns"
so that they will be able to return home after completing
the run. Generally, drivers are dispatched, as available,
to transport loads, as they come in to the terminal, on a
first-in, first-out basis. Under this system, drivers receive
both turn and layover dispatches on an at-random basis.
However, eight over-the-road drivers, on a seniority
basis, have been awarded "bid runs," that is, permanent
runs, turns, to specified locations on a regular schedule.
Drivers are required, by Department of Transportation
regulations, and company policy, to maintain logs of
their activities while in a work status. The daily logs uti-
lized by the Respondent's drivers cover a 24-hour
period, from noon of one day to noon of the next. These
documents reflect the driver 's status for each 15-minute
period, as (a) off-duty; (b) sleeper berth; (c) on-duty not
driving or; (d) on-duty driving. The driver's daily log
must be kept current to the last change of duty status,
for example, an entry must be made when a driver fin-
ishes a lunchbreak (off-duty) and starts to drive his vehi-
cle (on-duty driving). Until the summer of 1981 , the Bal-
timore drivers, uniformly, had not made log entries for
the time spent in updating their logs, or in closing out
one day's log and beginning another.
In this case, the General Counsel contends that in the
fall of 1981, the Respondent violated Section 8(a)(1) of
the Act when it issued letters of warning to, and im-
posed 1-day suspensions on, the Charging Parties, in re-
sponse to their actions, in concert with other employees,
of stopping their vehicles at or around the noon hour for
the purpose of updating their logs and logging said time
as on-duty not driving. The General Counsel further
claims that during the period August 25, 1981, to March
1, 1982, the Respondent violated Section 8(a)(3) of the
Act by refusing to allow Charging Party Reuter tempo-
rarily to substitute for an absent bid run driver. Finally,
the General Counsel asserts that, between August 25,
1981, and February 25, 1982, the Respondent discrimi-
nated against Reuter, in violation of Section 8(a)(3), by
assigning him fewer layover runs than were assigned to
other drivers. The Respondent denies the unfair labor
practice allegations and, further , asserts that "the allega-
tions contained in the Amended Consolidated Complaint
are proper for deferral under Spielberg Mfg. Co., 112
NLRB 1080 (1955) and Collyer Insulated Wire, 192
NLRB 837 (1971)."
441
B. Facts'
On August 19, 1981, employee Jack Myerovitz re-
ceived a "letter of information" from his supervisor,
Donald Merritt, stating that the employee was "logging
1/4 hour as on duty not driving time each day at noon
when you are on the road as `updating logs.' This . . . is
not required and any further instances of this occurring
will . . . result in disciplinary action being taken." The
letter was in response to the practice adopted by Myero-
vitz of stopping his vehicle about the noon hour to close
out 1 day's log and begin another, and recording the
time so spent as 15 minutes, on-duty not driving, updat-
ing logs.2 Myerovitz then discussed the matter with his
steward, Reuter, and with employee Harold Carey, and
the three drivers agreed that Myerovitz' action was a
proper one and that all three of them would, thereafter,
engage in that practice. Contrary to the position of their
supervisor, Merritt, that the stop was a waste of time,
the employees voiced the opinion that Department of
Transportation (DOT) regulations require that all non-
driving, job-related activities be recorded, and that stop-
ping at noon to close one log and begin another was nec-
essary to comply with the DOT requirement that logs be
kept current to the last change of duty status. The three
employees sought and received oral and written state-
ments on the matter from DOT and they interpreted
same as supporting their position. Thus, on October 21,
1981 , DOT answered a Reuter inquiry with a letter stat-
ing that "all time spent preparing a log, including the
completion of one log and starting a new log, in order to
comply with the requirement to be current to the last
change of duty status, is to be logged on duty not driv-
ing."
In the latter months of 1981, Merritt sent to Reuter
and Carey, letters of information concerning this matter,
warning letters, and, finally, letters announcing the impo-
sition of 1-day suspensions.' Reuter and Carey filed con-
tractual grievances which resulted in arbitration proceed-
ings before the Joint Maryland District of Columbia
Area Committee. On January 6, 1982, that body issued
its decision on the Reuter grievance that, "based upon
the facts presented the claim of the Union is denied." On
March 3, the Committee similarly disposed of the Carey
grievance.' The record in this case is silent concerning
1 The factfinding contained herein are based on a composite of docu-
mentary and testimonial evidence introduced at trial . I have resolved tes-
timonial conflicts in favor of the factual accounts offered by employees
Louis Reuter and Jack Myerovitz, both of whom impressed me as honest
and forthright and in possession of a clear recollection of events, as
against the vaguer narrations offered by Line Haul Relay Manager
Donald Merritt and District Manager David Morin.
P Employees log an activity consuming 7-1/2 minutes to 22- 1/2 min-
utes as a 15-minute period . An activity taking less than 7 - 1/2 minutes is
not recorded at all.
9 Myerovitz also received a formal warning letter and, thereafter,
ceased to engage in this activity.
* The Committee apparently agreed with the Respondent's position
that DOT regulations do not require a stop for the purpose of closing out
1 day's log and beginning another, that that matter need not be attended
to until the driver's next change of duty status , and, in any event, an
entry for this activity need not be made.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the question of whether evidence of the concerted nature
of the activities engaged in by Reuter and Carey was
presented to, and considered by, the Committee.
The General Counsel's contention of discrimination
against Reuter , by assignment to him of fewer layover
runs than were assigned to other drivers, is based on the
substantial credited record evidence in this case that Re-
spondent harbored ill will toward that employee of his
union activities, in particular, his action as a steward,"
and statistical evidence showing that Reuter , during the
relevant period , was assigned a relatively small number
of preplanned layover runs. While dispatch procedures
are governed by the collective-bargaining agreement,
and a subsequent memorandum of understanding be-
tween the parties, and, too, the collective-bargaining
agreement contains broad antidiscrimination provisions,"
Reuter did not file a grievance concerning this matter.
The Respondent has expressed its willingness to arbitrate
the dispute.
The General Counsel's further claim that the Respond-
ent acted unlawfully when it refused to allow Reuter to
substitute for a bid run driver, who, due to illness, was
absent from work a substantial period, at a time when
Reuter was the most senior driver who had not been
awarded a bid run, is based on the evidence of animus
and a claimed past practice , disputed by the Respondent,
of awarding a temporary bid run in these circumstances.'
Again Reuter did not file a grievance concerning the
matter . The Respondent is willing to take the matter to
arbitration.
C. Conclusions
The Board's recent decision in Olin Corp., 268 NLRB
573 (1984), mandates that I not consider the 8(a)(1) issue
on its merits but, rather, defer to the arbitration awards
S That evidence includes Reuter 's credited testimony that , in April
1980 and , again , in August of that year, District Manager Morin mterro-
gated hun concerning the employee's activities in seeking a new election
for the position of shop steward. Morin told Reuter that there was no
need for an election as the then-incumbent steward was doing a fine job
and that whether Reuter was granted a requested leave of absence de-
pended on the employee's willingness to "scratch" Morin's back . In Sep-
tember 1981, after Reuter had been elected steward of the over -the-road
drivers, Morin told him that what was wrong with him was that he,
Reuter , was "all union ." At trial , Morin testified that Reuter "had his
nose in a lot of local affairs" that were not his concern
8 Art 21 of the contract provides "Any employee member of the
Union acting in any official capacity whatsoever shall not be discnmmat-
ed against for his acts as such officer of the Union . nor shall there be
any discrimination against any employee because of union membership or
activities."
r The Respondent denies that there was a practice of awarding tempo-
rary bid runs to fill the assignments of absent bid run drivers . The Gener-
al Counsel , to support the contention that a practice existed , introduced
evidence that, in 1980, when bid run driver Allen Chamelin was absent
from work for 3 or 4 months , a temporary bid run was awarded Thus,
the General Counsel argues, absent discriminatory motives, the Respond-
ent, pursuant to the Chamelin precedent, would have awarded a tempo-
rary bid run when , during the August 25, 1981, to March 1 , 1982 period,
bid run driver David Hare was absent from work The Respondent dis-
tinguishes the two situations Chamelin was absent for a time for reasons
other than illness Hare's absence was due to illness and at no time during
the period of his sickness did the Respondent anticipate that a lengthy
period would elapse before his return to work Therefore , the Respond-
ent decided not to award a temporary bid run , despite Reuter's requests
that it do so and, instead , placed the trips constituting that run into the
overall pool of runs
of the Joint Area Committee which, as noted, dispose of
the grievances of Reuter and Carey over the suspensions
received by them because of their noon logging prac-
tices . In Olin , the Board refined its policy of deferral to
arbitration awards, pursuant to the grievance procedure
contained in the parties ' collective-bargaining agreement,
in which the proceedings appear to have been fair and
regular, all parties have agreed to be bound, and the de-
cision of the arbitrator is not clearly repugnant to the
purposes and policies of the Act.8 The Board stated (at
574):
We would find that an arbitrator has adequately co-
sidered the unfair labor practice if (1) the contrac-
tual issue is factually parallel to the unfair labor
practice issue, and (2) the arbitrator was presented
generally with the facts relevant to resolving the
unfair labor practice.
It further concluded that it would not find an award
"clearly repugnant" unless the award is "palpably
wrong," that is, not susceptible to an interpretation con-
sistent with the Act. Finally, the Board ruled in Olin that
the party seeking to have the Board reject deferral, and
consider the merits of a given case, bears the burden of
showing that the deferral standards have not been met.
In this case, the General Counsel's argument, that de-
ferral is not appropriate, is based on her contention that
the Joint Area Committee did not consider whether
Reuter and Carey were engaged in concerted activities,
an essential element of the statutory issue . However, the
General Counsel has failed to establish that, in fact, evi-
dence of the concerted nature of the employees' activi-
ties was not before the Committee. Accordingly, under
Olin, deferral to the arbitration awards is required.
The Board's recent decision in United Technologies
Corp., 268 NLRB 557 (1984), mandates that I not consid-
er the 8(a)(3) issues on their merits but, rather, that I
refer those matters to the arbitral forum. The statutory
issues are , as shown, cognizable under the grievance-ar-
bitration provisions of the parties' collective-bargaining
agreement . The Respondent has expressed its willingness
to arbitrate the dispute. In these circumstances, the
United Technologies decision requires deferral to the con-
tractually created forum under the principles of Collyer
Insulated Wire, 192 NLRB 837 (1971).
CONCLUSIONS OF LA w
1. Respondent Carolina Freight Carriers Corporation
is an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Freight Drivers and Helpers Union No. 557, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helprs of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. The issuance of letters of warning to, and the sus-
pensions of, Reuter and Carey, alleged in the complaint
8 See Spielberg Mfg. Co, 112 NLRB 1080 (1955)
CAROLINA FREIGHT CARRIERS
as violative of Section 8(a)(1) of the Act have been the
subject of grievance arbitration awards and it is appro-
priate to defer to those awards and to dismiss the com-
plaint in that regard.
4. The 8(a)(3) issues raised by the complaint, concern-
ing the Respondent's refusal to permit Reuter to, substi-
tute for an absent driver on a bid run, and the, alleged
assignment of,fewer layover -runs to him than were as-
signed to other -drivers, are appropriate for deferral to
the grievance-arbitration provisions of the collective-bar-
gaining agreement between the Respondent and the
Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
443
Those portions of the complaint alleging violations of
Section 8(aXl) of, the Act are dismissed, provided that:
Jurisdiction of this proceeding is retained for the limit-
ed purpose of entertaining an appropriate and timely
motion for further consideration on a proper showing
that (a) the dispute has not, with reasonable promptness
after the issuance of this decision,, either been resolved
by amicable settlement in the grievance procedure or
submitted promptly to. arbitration, or (b) the grievance or
arbitration procedures have not been fair and , regular or
have reached a result which is repugnant to the Act.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the poses.