M & G Convoy, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1982

260 N.L.R.B. 1052 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & G Convoy, Inc. and Dave L. Williams. Case 6-
CA-12459
March 19, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 30, 1980, Administrative Law
Judge Harold Bernard, Jr., issued the attached De-
cision in this proceeding. Thereafter, M & G
Convoy, Inc., Respondent herein, filed exceptions
and a supporting brief, Dave L. Williams, the
Charging Party herein, filed exceptions, a support-
ing brief, and a brief in answer to Respondent's ex-
ceptions, and the General Counsel filed a brief in
answer to Respondent's exceptions.
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, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.2
In its exceptions, Respondent asserts, inter alia,
that its refusal to employ the Murrysville-Pitcairn
employees at its New Stanton facility after it
closed its Pitcairn railhead was not in violation of
the Act inasmuch as there is no showing that it had
any openings at New Stanton at that time. Assum-
ing arguendo that Respondent had no openings at
its New Stanton facility as of the time it actually
closed its Pitcairn railhead, this argument is disin-
genuous for it is clear that Respondent accom-
plished this result by hiring 15 new, inexperienced
drivers and transferring 4 others from its Buffalo
facility after it learned in mid-March of Chrysler's
decision requiring the closing of the Pitcairn rail-
' Respondent asserts that the Administrative Law Judge's resolutionls
of credibility, findings of fact. and conclusions of law are the result of
bias. After a careful examination of the entire record. we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative L avw Judge resolved
important factual conflicts in favor of the General Counsel's witnesses
As the Supreme Court stated in iA.L.R. B Pittsburgh Steamship Compa-
ny, 337 US. 656, 659 (1949), "iT]otal rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of fact"
Furthermore, it is the Board's established policy not to overrule an ad-
ministrative lasw judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence consinces us that the
resolutions are incorrect Standard Dry Wall Productr. Inc.. 91 NLRB 544
(1950), enfd 188 F 2d (3d Cir 1951) We have carefully examined the
record and find no basis for reversing his findings
2 In his recommended Order, the Administrative I as Judge referred
to employee Tom Nacey as "Toni Nancy " We shall modify his reconl-
mended Order to correct this inadvertent error
head.3 That this staffing decision was motivated
solely by Respondent's expressed desire to keep its
New Stanton facility "pure" of the Murrysville-Pit-
cairn employees 4 is established by the fact that
none of these newly hired or transferred employees
was utilized at New Stanton prior to the date the
last railcar was received at Pitcairn and only six of
these employees (two new and four transferred)
were utilized prior to the date that the last vehicle
was shipped from Pitcairn. Thus, this staffing deci-
sion accomplished no legitimate business goal, nor
was it likely to since, according to Respondent's
terminal manager at New Stanton, each newly
hired driver had to be trained for approximately 3
weeks at a cost of $500 prior to being utilized at
New Stanton. Contrarily, experienced drivers, such
as the Murrysville-Pitcairn employees, could be uti-
lized at New Stanton immediately; in fact, several
of the Murrysville-Pitcairn employees were utilized
at New Stanton from time to time as "floaters," but
were denied permanent employment. Under these
circumstances, we can conclude only that the
reason that Respondent chose to staff its New
Stanton facility in this manner was to avoid its con-
tractual obligation under article 5, section 3(a), of
the National Automobile Transporters Agreement
to offer employment at New Stanton to those em-
ployees who were laid off when the Pitcairn rail-
head closed. Accordingly, we adopt the Adminis-
trative Law Judge's finding that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by failing and
refusing to transfer employees in the bargaining
unit from Pitcairn to New Stanton in April 1979.5
' Respondent contends that it did not know when the Pitcairn railhead
would close until April 10. 1979, the date that the last railcar 'was re-
ceived at Pitcairn Inasmuch as all of Respondent's traffic from Chrysler
is processed on a computer through Respondent's Detroit terminal and in
view of the fact that a railcar is loaded 10 to 13 days prior to arrival at
Pitcairn, we reject Respondent's contention in this regard Moreover. Re-
sponderits terminal manager at Pitcairn testified that he ceased looking
fior a new garage in mid-March 1979 "as soon as [he] found out that the
terminal was going to be closed"
4 For the reasons stated by the Administrative Law Judge. it is clear
that Respondent's desire to keep its New Stanton facility "pure" of these
emplosees wvas due to the fact that, as members of Teamsters Local 249.
they actively enforced the terms of their contract and, thus, were viewed
by Respondent as "troublemakers"
' In this connection, the remedial order of the Administrative Lasw
Judge runs fromn April 1979. the date when Respondent closed down the
Murrysville-Pitcairn facility Hotwever, he also found that it was Re-
spondent's policy both before and since the commencement of the l(bh)
period ontt December 13, 1978, not to transfer Murryssille-Pitcairn em-
ployees to New Stanton and that this polic , was discriminatorils moti-
sated. We shall therefore modify the remedial order bh making it effec-
live as of December 13, 1978 The qurstion of which Murrysville-Plitcairn
employees were discrininartorily deuied transfers to the New Stanton fa-
cility on or after that date can be determined at the compliance stage of
this proceeding
260 NLRB No. 145
1052
M1 & G CONV'OY. INC
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 modi-
fied below, and hereby orders that the Respondent,
M & G Convoy, Inc., New Stanton, Pennsylvania,
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 paragraph l(a):
"(a) Refusing to employ as regular full-time driv-
ers at its New Stanton, Pennsylvania, location all
former employees at Murrysville-Pitcairn, includ-
ing Carl Adams, Robert Amantea, Harry Barbus,
Charles Burgh, Walter C. Dollman, David Eld,
Frank Komlenic, Robert Kaczynski, George Law-
rence, Cliff Lockwood, Jr., Tom Nacey, William
Nock, Al Toth, William Walters, Dave Williams,
and Scotty Norris."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to transfer employees
who desire to transfer to the New Stanton ter-
minal in order to discourage employees from
filing grievances or to discourage membership
in or activities on behalf of Local 249, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
WE WILL NOT threaten employees that we
will not transfer or accept for employment at
New Stanton any employees who worked at
Murrysville-Pitcairn who were members of or
affiliated with the above-named Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in the
National Labor Relations Act, as amended.
WE WILL offer immediate positions at New
Stanton to Carl Adams, Robert Amantea,
Harry Barbus, Charles Burgh, Walter C. Doll-
man, David Eld, Frank Komlenic, Robert
Kaczynski, George Lawrence, Cliff Lock-
wood, Jr., Tom Nacey, William Nock, Al
Toth, William Walters, Dave Williams, and
Scotty Norris, without prejudice to their se-
niority and other rights and privileges, and
make them whole for any loss of pay suffered
as a result of the discrimination against them,
plus interest, and establish a preferential hiring
list for other former employees at Murrysville-
Pitcairn who were discouraged from applying
for transfer to New Stanton by our discrimina-
tory conduct.
M & G CONVOY, INC.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge:
This case was heard on January 10, 11, 22, and 23, 1980,
in Pittsburgh, Pennsylvania, pursuant to a complaint
issued in July 1979, alleging that M & G Convoy, Inc.,
herein called Respondent or M & G, violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended, by making and carrying out threats not to
transfer employees from its Murrysville terminal to its
new terminal in New Stanton, Pennsylvania, because said
employees engaged in protected concerted union activi-
ties. Respondent denies the commission of any unfair
labor practices and attributes its staffing decisions at
New Stanton solely to valid business considerations.
Upon consideration of the entire record, the demeanor
of the witnesses, and carefully prepared briefs filed by
the parties, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent admits, the record shows, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Con-
cededly, General Teamsters, Chauffeurs and Helpers
Local 249, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
Agency
The complaint alleges that the following individuals
were supervisors and agents of Respondent: Mike Pe-
trina, president; Fritz Reinhardt, executive vice presi-
dent; E. J. Bannon, vice president of operations and traf-
fic; Peter Ulrihich (corrected to Ulrich), vice president
(corrected to director) of safety and personnel; Donald
Rager, Murrysville terminal manager; and William D.
Howell, New Stanton terminal manager. Respondent, by
answer, agreed that the above were supervisors as de-
fined in the Act and that their titles were accurate, but
took no position on their alleged agency status. Based
upon their status as agreed-upon supervisors invested
with managerial authority to operate Respondent's busi-
1053
1DECISIONS ()F NATIONA I.ABO()R REI ATIONS BO)ARD
ness, as clearly shown by their own testimony and this
record reflecting such status, I find that at all times mate-
rial herein the above were both supervisors and agents of
Respondent, acting on its behalf, within the meaning of
Section 2(11) and (13) of the Act.
II. I1Hl INFAIR I AHOR PRAC'I ICES
A. Background
Respondent is engaged in the business of transporting
new cars by truck carriers from terminals located in,
among other places, Newark, New Jersey; Wilmington,
Delaware; Buffalo, New York; Detroit, Michigan; and
New Stanton, Pennsylvania. Respondent, until April
1979, also operated a terminal and railhead facility at
Murrysville, Pennsylvania-the railhead portion of this
facility being known as Pitcairn. Employees at "Murrys-
ville-Pitcairn," some 21 drivers and 5 mechanics, were
principally engaged in transporting Chrysler- made new
cars and were represented by Teamsters Local 249. Due
to a rate rearrangement with Chrysler whereby the traf-
fic formerly routed through Murrysville-Pitcairn could
be handled via the Detroit, Michigan, facilities of Re-
spondent, the Murrysville-Pitcairn facility ceased han-
dling Chryslers-the last such vehicle being shipped
from there on April 20, 1979. However, from then until
June 18, 1979, many Murrysville drivers worked on a
"floating" basis at Respondent's new location in New
Stanton, discussed below.
Somewhat concurrently with the developments at
Murrysville-Pitcairn, a substantial change in Respond-
ent's business with another customer, Volkswagen (VW),
had occurred earlier when the latter opened a new car
assembly plant in New Stanton-only about 24 miles
from Murrysville-in July 1978.
Beginning in June 1978, Respondent hired 78 employ-
ees for a new terminal operation to serve VW's transpor-
tation needs in the New Stanton-Murrysville area, draw-
ing either from outside applicants (some 54 in number) or
from employees already working at its existing terminals
(some 24 in number), where, in some cases, Respondent
had handled VW traffic from port of entry locations
prior to New Stanton's opening. None of the alleged dis-
criminatees (drivers) at Murrysville as set forth in the
complaint herein were offered regular employment at
New Stanton, nor were their continuing requests for
such employment granted. Respondent chose, instead, to
offer Murrysville drivers the chance on a "follow the
work" principle to transfer to its Detroit, Michigan, ter-
minal, which is located 300 miles from Murrysville.
Those who chose not to do so or not to accept transfers
to other locations (other than New Stanton) were laid
off. Whether Respondent's conduct in this regard was
unlawful is now considered.
B. Respondenr's Attitude Towards Local 249 Members
at Murrysville
Well before the New Stanton operation fully com-
menced in July 1978 there were ominous signs for any
hopes entertained by Murrysville drivers that they would
be allowed to transfer to the new terminal, only 24 miles
from the soon-to-be-closed Murrysville site, thereby
clearly avoiding a change in residence and insuring for
themselves what appeared to be a profitable source of
continuing employment.
The earliest indicators appeared well before the 6-
month statutory limitations period set forth in Section
10(b) of the Act-the charge was filed on June 13,
1979-and thus do not afford any basis for finding a vio-
lation in this case, but nevertheless provide valuable
background.
Thus, when Robert Amantea was hired as one of Re-
spondent's drivers at Murrysville in March 1974, Termi-
nal Manager Rager informed him that driver Frank
Komlenic, a frequent grievance filer, was a "troublemak-
er." Rager later told Amantea, in February 1978, that be-
cause of Komlenic they, the Murrysville drivers, could
forget working at New Stanton, and that, if Komlenic
were elected steward, M & G would close the terminal.
Amantea further recalled that sometime in March or
April 1978 Rager characterized Local 249 members as
being "troublemakers" as a group. Rager also told driver
Albert Toth, when the latter was hired in May 1978, to
stay away from Komlenic because he "makes trouble"
for the terminal.
There is no question that Komlenic exercised the right
to file grievances, as shown by his filing 33 grievances
out of the 69 filed by Local 249 members between April
15, 1978, and April 1979. Respondent made known its
notice of this fact during a telephone conference call
meeting with Local 249 on May 3, 1978, attended by
Komlenic, Union President Thomas Fagan, and Dave
Williams, union steward, when E. J. Bannon, vice presi-
dent of operations and traffic, was heard by Williams to
sarcastically ask whether anyone else besides Komlenic
filed grievances. When informed Komlenic was present,
Bannon replied he "didn't . . . give a damn."
Later that summer, Respondent and Local 249, with
Komlenic and Williams present, met to discuss griev-
ances, mainly those filed by Komlenic. Bannon, present
with Ron Borgas, Respondent's director of labor rela-
tions-a stipulated supervisor whom I find also to be a
highly authoritative agent of Respondent-and Rager, in-
quired whether Komlenic had nothing better to do on a
Sunday than to file grievances, asked why he did not
take up golf instead, and called the grievances "chicken
[manure]." Bannon also stated that Respondent did not
need such "aggravation." At a third meeting on Komlen-
ic's grievances that fall, held at a Ramada Inn, Bannon
again deprecated the grievances as before, this time
being echoed by Borgas, who referred to the grievances
with the same description. Bannon also asked Williams if
he, Williams, was a "90-day wonder" with contracts.
During the same time period as these meetings, Wil-
liams informed Respondent through Terminal Manager
Rager that he and drivers Walt Dollman and Bill Wal-
ters wished to transfer to the New Stanton facility, but
that Rager had indicated they would not be working at
New Stanton because of Komlenic. Williams also filed a
grievance, on August 19, 1978, complaining that all the
Murrysville employees were not getting an opportunity
to work at New Stanton, thereby communicating to Re-
spondent that the Murrysville drivers desired such trans-
1054
1 & i ( C()NV()Y, INC
fers. Williams further recalled a conversation near the
water fountain with drivers Amantea and Dollman in
November 1978 when Rager walked over from his
nearby office and said. "You guys will never get to New
Stanton as long as Komlenic is here.
Dollman, who corroborated Williams' account, re-
called a further similar comment by Rager, in May 1979
at the New Stanton garage, when Rager was discussing
with driver George Lawrence in Rager's office the possi-
ble reasons why M & G would "uproot" the experienced
Murrysville drivers and their families who lived only 20
miles from New Stanton, and Rager stated it was be-
cause the drivers belonged to Local 249 and also due to
Komlenic. Dollman further recalled that Rager, referring
to "our knowledge," pointed out that Ilocal 249 had re-
fused to agree to a "competitive" rate reducing wages on
return hauls in this same conversation. Lawrence cor-
roborated Dollman, adding that Rager said, referring to
members of Local 249, that they were troublemakers and
he did not want any part of them. Lawrence testified to
an earlier talk with Rager when Lawrence was asking
about a transfer to New Stanton and Rager said, "No
way, they don't want no part of Local 249."
Later in the summer of 1979, Rager, in a talk with
Dollman in their neighborhood, repeated the threat that
as long as Komlenic worked for M & G there was no
way the Murrysville drivers would be employed at New
Stanton, and stated that Respondent did not want "our
experience and knowledge," over at Local 30, the new
Teamsters local at New Stanton. The record shows that,
as a Local 249 member, Dollman grieved over being
paid the competitive rate on a return load and, as a
result, was paid the full rate, while, by contrast, the new
local union at New Stanton, Local 30, agreed to this
lower competitive rate for drivers at New Stanton.
Still further indications why the staffing at New Stan-
ton excluded Murrysville drivers is found in testimony
by lead mechanic Robert Colbert, a veteran employee
with 14-1/2 years' service who was highly credible in his
matter-of-fact responses under examination. Colbert's
duties involved, inter alia, contacts with company offi-
cials. He recalled that Komlenic filed numerous griev-
ances, some of which were shown to him by Rager in
the latter's office during the final months of the Murrys-
ville operation. On one such occasion, Rager told him,
"[L]ook what this bastard wants now, look what he's
doing to us now." Rager said, according to Colbert, that
Komlenic demanded every little thing and probably
would be the cause of "none of us getting to New Stan-
ton." Colbert recalled Ragers saying, on other occasions
on unspecified dates, "[l]f it wasn't for that bastard we
would probably all have jobs at New Stanton."
Colbert testified that, during a telephone conversation
with Fritz Reinhardt, Respondent's executive vice presi-
dent, in March 1979, Reinhardt told Colbert that he
would like to be rid of Komlenic, and that Respondent
had fired Komlenic once but that "our" Union had saved
him. Reinhardt, by this account, also stated that if Re-
spondent were rid of Komlenic "we probably all would
have jobs at New Stanton." Colbert called Reinhardt
during the second week in April 1979 as a followup to a
call the week before in which Reinhardt had assured him
a place in New Stanton, saying. "[W\]e take care of our
people." During this second call, Reinhardt told Colbert
he would have to follow the work and go to Detroit, re-
peating the comment that Komlenic had caused this
Colbert's accounts are credited over Reinhardt's uneluci-
dating denials. often secured by leading questions and
marked by a lack of conviction and the spontaneity asso-
ciated with his credible testimony in noncontroversial
areas of questioning.
There X were other unfavorable signs. Driver Robert
Thomas recalled Rager's telling him, in response to his
asking about a chance to go to New Stanton in
November 1978, that no one would go as long as Kom-
lenic worked for him. According to another driver, Wil-
liam Walters, after the Murrysville garage closed be-
tween November 1978 and April 1979 (leaving only the
Pitcairn railhead where Respondent operated from a
trailer), Rager told him that he could thank those two
"assholes," referring to Shop Steward Williams and
Komlenic, for not getting to New Stanton.
Komlenic, a senior employee with 13 years' seniority,
testified that in a conversation with Rager on January 22,
1979, Rager referred to grievances filed by Komlenic as,
"It is this kind of stuff that's going to keep us from going
to New Stanton," and corroborated Williams' description
of Bannon's comments during the earlier-described griev-
ance meetings. Komlenic also testified that Rager said
"that Buffalo had told him that none of the Murrysville
men would go to New Stanton, including myself because
of me" (meaning Komlenic). Driver Clifford Lockwood
described similar statements by Rager as reported by
other drivers. He further testified that Rager, around
November 1978, after the Murrysville garage had closed,
said Respondent was getting New Stanton off the
ground and did not need any Local 249 people, or trou-
blemakers, people like Komlenic. Driver Albert Toth,
also corroborating earlier accounts of threats by Rager
that the drivers would not go to New Stanton due to
Komlenic and Steward Williams, further testified that he
had a conversation with New Stanton Terminal Manager
William D. Howell in early April 1979 and asked Howell
for a job there. Toth testified that Howell said he would
hire them all (the Murrysville drivers), but because of
Komlenic and Williams "they would be held back." I
found Howell credible in noncontroversial areas, but he
exhibited a selective power of recall and was fed leading
questions as to Toth's account and other matters in issue.
By contrast, Toth's unvarnished account and credible de-
meanor, coupled with his ignoring opportunities to em-
bellish his testimony in favor of the party calling him,
commends his account over Howell's. I further find
Rager's testimony-in which he frequently was led but
also frequently expressed an inability to recall, rather
than a convincing denial of, the numerous statements
covering Respondent's staffing intentions at New Stanton
attributed to him-totally unpersuasive. E. J. Bannon,
vice president of operations and traffic, was not called to
testify by Respondent.
I do not find persuasiv e for purposes of determining credibility. as
alleged hb Rerpoldent. the mere facu Ihal driver log, do not establish the
Coninued
DE CISIONS OF NATI()NA. LABOR RELATI ONS BOARD
C. !Murrysville Drivers' Request To 1'ransofr to .Aew
Stan ton
It is not controverted that the Murrysville drivers
communicated requests to Respondent that they be al-
lowed to transfer to New Stanton and, while Respondent
represented at the hearing that there was no provision in
the collective-bargaining contract permitting transfers
"within the agreement," likewise no provision was point-
ed out in the agreement which would prevent an em-
ployer from transferring employees.
Respondent adverts to the contract and grievances2
themselves in defense of its actions in many different re-
spects throughout its brief, as if seeking to establish that
conduct considered or found consistent with contract
language is ipso facto free from unlawfulness, or that, be-
cause Murrysville employees had "rights" to follow the
work to Detroit under the contract, their own voiced
requests, indeed insistence, on not transferring to Detroit
is meaningless in the scheme of things. This is particular-
ly revealing as to the absence of bona fides in Respond-
ent's position inasmuch as it had not only been confront-
ed with a grievance over the matter as early as August
19, 1978 (G.C. Exh. 2(c)), on behalf of all Murrysville
employees, as well as numerous requests by individuals,
but also because it had other firsthand evidence before it
that employees desired to transfer to New Stanton from
mid to late April 1979-well within the 10(b) period.
Thus, by letters addressed to vice president of operations
Bannon, 18 Murrysville employees sent requests dated
either April 16 or April 23, 1979, stating their willingness
to accept assignments with regular classification at the
Westmoreland (New Stanton) M & G terminal (G.C.
Exhs. 4(a)-(r)). It is not disputed that such requests were
denied.
Further, there was testimony by employee Walters
that in a call (see fn. I) on February 13, 1979, to the cen-
tral dispatch manager and an agreed-upon supervisor,
Womer, in Buffalo, clearly another authoritative Re-
spondent representative, Respondent was aware that
Murrysville-Pitcairn could be closing by mid-March.
Womer was not called to testify in denial. Ralph Thomp-
son, Respondent's vice president of industrial relations
who admittedly understood that Murrysville employees
wanted to transfer to New Stanton from "general knowl-
date on which certain alleged telephone calls took place or, il one in-
stance, the alleged location from which a call was made, as the passage
of time might well have led to mistakes on details such as these, and the
gist of these occurrences swas forthrightly and credibly tendered ill con-
trast to the denials of same, which were not. In fact. as to the call by
William Walters to the Buffalo central dispatch manager, John Womer.
on February 13, 1979. Respondent failed to call Womer to the stand to
deny such call or its contents, but merely pointed out that Walters' log
did not "show" the call. Further, Respondent's argument that Williams'
testimony that he drove from New Stanton in January 1979 was not sup-
ported by the logs is correct. howesver. Williams also testified ssilhout
contradiction that he also drove from New Stanton in Februars and
March 1979 so that the fact of a Murrysville driver's use at New Stanton
in this period. along with uncontradicted testimony by Toth and Dollman
that they, too, were regularly used at New Stanton. remains established
Further, the fact that a wsitness' testimony is not credited in ilne respect
does not require that other parts of such testimony cannot be relied (in
Accordingly. Williams' testimony otherwise is credited.
2 None of the grievances filed during events in this case dealt with alle-
gations of unlawful discrimination under the Act so that their resolution
is not controlling to the outcome herein
edge," also was aware that Murrysville was closing by
March 1979 because he knew, as he testified, that Re-
spondent was going to "absorb" the Murrysville drivers
at Detroit at that time. The fact that Respondent, as tes-
tified by Thompson, conceded that the need for drivers
at New Stanton doubled during that same period from 30
to 60 employees without any Murrysville driver being
offered a position at New Stanton is also a reliable indi-
cator that Respondent, at least since mid-March 1979,
would have offered Murrysville drivers positions at New
Stanton because it needed drivers there but for its earlier
announcements of intentions to discriminate against
them. That this was caused by discrimination is not suc-
cessfully rebutted by Respondent's defenses, but rather is
further buttressed.
D. Respondent's Position
Respondent's witnesses generally denied or were
unable to recall the numerous statements attributed to
them by the General Counsel's witnesses. In addition,
Respondent submitted various reasons why the Murrys-
ville drivers involved herein were not employed at New
Stanton. One advanced reason is the assertion that the
drivers' equipment was not usable for the smaller sized
VW vehicles at New Stanton; yet Murrysville drivers
had indisputably worked out of New Stanton on numer-
ous occasions delivering VW products with no reported
difficulty, nor was such "more suitable" equipment
shown to be unavailable to Respondent. A second al-
leged reason is the assertion that Murrysville drivers
were needed at Murrysville; yet the record clearly shows
that at many relevant times, including hiring periods at
New Stanton, Murrysville drivers were being used at
New Stanton because work was slow at Murrysville.
Thus, as only two of other representative examples,
driver Walters hauled loads out of New Stanton in April
1979, and that same spring driver Dollman received driv-
ing assignments there. Even more significantly, drivers
were laid off due to lack of work at Murrysville yet
were not even offered employment at New Stanton. A
third reason was the assertion that the Murrysville driv-
ers were needed at the Detroit terminal and, due to the
desirability of backhauling, could not be used at New
Stanton. The record fails to establish, however, why
Murrysville drivers could not be stationed at New Stan-
ton and still be used for Detroit business, and no reason
appears why, as questioned by the General Counsel,
drivers could not backhaul Detroit traffic though sta-
tioned in New Stanton. Nor does Respondent's reliance
on a "follow the work principle" apply in a controlling
manner herein inasmuch as, during the advent of the
New Stanton operation and afterward, Murrysville driv-
ers frequently worked there-a fact which could warrant
considering Murrysville drivers as entitled, to some
degree at least, to consideration for assignment to New
Stanton since New Stanton runs were "part" of the Mur-
rysville "work" prior to the Murrysville closing. A
fourth and still further shifting defense by Respondent
was that it did not know Murrysville was going to close
at or around the time New Stanton was being staffed.
This defense also lacks merit inasmuch as the record
1056
M & G CONVOY, INC.
demonstrates that Respondent hired 15 new drivers and
transferred 4 others into New Stanton after it admittedly
learned of Chrysler's decision requiring the closing of
Murrysville-Pitcairn in mid-March 1979 and the latter
closed the following month (G.C. Exh. 9).
Likewise worthy of answering is why drivers were al-
lowed to float to New Stanton after April 1979 if they
were needed at Detroit, and why they were given the
option of Newark if the Detroit operation needed them.
That these drivers were not needed in Detroit is shown,
as argued by the General Counsel, by Respondent's as-
sertion they would have been allowed to float after June
1979 if only they had a "home" terminal. Respondent
further advanced as a reason why Murrysville drivers
were not "housed" in New Stanton that it would be a
problem, inter alia, because there would then be two
local unions at the same location and it would be diffi-
cult to decide which equipment (trucks) would be serv-
iced first. The tenuousness in such a defense is obvious
and no reason was advanced why normal scheduling
procedures for maintenance could not be followed with-
out encountering insurmountable problems. Respondent
cannot escape the revealing inquiry-why with a loca-
tion only some 20 miles distant from a site where a sea-
soned group of drivers was present, and where it had
fully closed one half or more of its facility (i.e., the Mur-
rysville terminal in November 1978, leaving only the Pit-
cairn railhead, which was not suitable for any major
maintenance or repairs of its valuable equipment, as testi-
fied by its own witnesses) and was looking for a new ter-
minal to house operations in the area-it did not simply
move, bag and baggage, into its own facility some 20
miles away. Nothing is shown by the record, in my
view, that suggests how Respondent's own described in-
terests in this set of events could have been harmed by
this single economic expedient other than its expressed
desire to keep New Stanton pure of Local 249 members.
The likelihood, if not certainty, that Respondent's deci-
sion would require drivers to uproot their families to a
location over 300 miles away indicates still further that
there was good reason to utilize New Stanton as a new
base for former Murrysville employees to meet M & G's
needs.
Finally, it is germane to note that despite the wide-
spread knowledge on the part of employees concerning
the reasons for Murrysville employees' not being hired at
New Stanton-knowledge based upon unequivocal state-
ments made to them by Respondent's own representa-
tives at Murrysville-Pitcairn and New Stanton-Re-
spondent never issued an authoritative disavowal of
those statements or advanced the reasons it now pre-
sents, so that the publicized reasons for Respondent's
conduct were allowed to stand uncontradicted. Civic
Center Cleaning Co., Inc., 252 NLRB 760 (1980).
E. Analysis
Respondent's asserted reasons, since they are based
upon threats and retaliation for the exercise of clearly
protected concerted union activities-the filing of griev-
ances, the processing and seeking redress of employee
complaints concerning working conditions by an active
union steward and grievance filing union member, the
taking of positions in negotiations and in grievances op-
posing the reduction of wages to facilitate a competitive
rate insuring Respondent more business, and the policing
or monitoring of contract terms on matters whether
large or small-clearly establish that Respondent acted
upon unlawful motives in violation of Section 8(a)(1) and
(3) of the Act when it threatened employees that it
would not allow them to be employed at New Stanton
and carried out those threats. D. H. 1. Enterprises, Inc.,
239 NLRB 1037 (1978). Nothing further need be noted
than the express and unlawful reasons advanced for Re-
spondent's action because these statements themselves
constitute sufficient proof of an unlawful motive in Re-
spondent's refusal and failure to grant the Murrysville
employees their communicated requests, orally, by letter,
and by grievance, to Respondent that they be transferred
24 miles from Murrysville to the New Stanton location,
where Respondent itself conceded it needed "experi-
enced" drivers. Central Power and Light Company, 239
NLRB 456 (1978); Boro Burglar Alarm Company, 234
NLRB 389 (1978); Tri-Maintenance & Contractors, Inc.,
235 NLRB 895 (1978); Pittsburgh Press Company, 234
NLRB 408 (1978); The Newark Morning Ledger Compa-
ny, 232 NLRB 581 (1977); and J. S. Alberici Construction
Co., Inc., 231 NLRB 1038 (1977). As also noted by the
General Counsel in his excellent brief these statements
are to be taken at face value because, as the Board
stated:
If we were to engage in . . . speculation [concern-
ing other possible reasons] we would leave the door
open for an employer to tell an employee . . . that
he was discharged for protected activities, with the
effect that would have on other employees, and
then to later defend on the ground that actually the
employee was discharged for some other legitimate
reason. We are unwilling to do so.
Chef Nathan Sez Eat Here, Inc., 181 NLRB 159 (1970).
By close analogy to the present circumstances, no such
speculation is warranted in this case. But while this find-
ing that Respondent violated Section 8(a)(1) and (3) of
the Act can stand alone on the basis of Respondent's
own communicated reasons, it is further buttressed by its
shifting defenses and its wholly unsupported and unper-
suasive reasons for its conduct advanced at the hearing,
as detailed above; for such transparency fails to hide, and
has been held to evince, an unlawful motive. Central
Power and Light Company, supra at 461; First National
Bank of Pueblo, 240 NLRB 184 (1979); and Best Products
Company, Inc., 236 NLRB 1024, 1025 (1978). 3 Accord-
ingly, I find, as alleged in the complaint, that Respondent
unlawfully threatened Murrysville employees that they
would not be employed at the New Stanton facility be-
cause of their protected concerted union activities, and,
Significantly. Respondent failed to call to the stand a highly responsi-
ble official. Eugene Bannon vice president of traffic and operations.
uho wvas ery instrumental in making the decisions in this set of events,
and to 'hom Murrsssille employees communicated their express "silling-
ners Io trilnsfer to Ness Stanton to set forth Ihe reasons for the staffing
decision or to dens the complaint allegations See Paro Afining ('ompant.
In,. 233 NRB 23 1 (1977)
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in fact, that it carried out that threat for such reason in
violation of Section 8(a)(l) and (3) of the Act. See also
Allied Mills, Inc., 218 NLRB 281 (1975).
itI. HI: I I::tICT OF TiHE UNFAIR LABOR PRACTICES
UPON COMM[IRCE
The activities of Respondent set forth in section 1I,
above, occurring in connection with the operations of
Respondent described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. ITHI. REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that, by staffing its New Stanton facility
in the above-described manner, Respondent discriminat-
ed with respect to Murrysville-Pitcairn employees, it
shall be recommended that Respondent be ordered to
remedy its violations by offering positions to the employ-
ees discriminated against, as identified in the complaint
and as noted herein below, at the New Stanton facility
and by making them whole for wages they would have
earned there but for Respondent's discriminatory con-
duct beginning from April 1979, the time Respondent
denied their requests for transfer, until this Order is com-
plied with, less net interim earnings, to be computed in
the manner established by the Board in F. W Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977); (see, generally, AIrs Plumb-
ing & Heating Co., 138 NLRB 716 (1962)).
As for those employees who did not indicate a desire
to transfer, but may have been deterred from doing so by
Respondent's illegal conduct, it will be recommended
that Respondent place such employees on a preferential
hiring list to be given an opportunity by Respondent for
employment prior to the employment of any other per-
sons. Since the record does not identify those employees,
I will regard this as a matter to be determined at the
compliance stage of this proceeding.
As Respondent no longer operates the Murrysville-Pit-
cairn facility, I shall recommend that Respondent be re-
quired to post the attached "Notice To Employees" at
all of its terminals for the usual period. In addition, since
the posting of such notices alone will not be sufficient to
reach all of the former employees at Murrysville-Pil-
cairn, I shall recommend that Respondent be required to
mail a copy of the attached notice to each employee
who was on Respondent's payroll there as of April 1979,
at his or her last known address, as disclosed by Re-
spondent's records or as may be amplified by the Union.
Further. I shall recommend that the Board reserve to
itself the right to amend or modify its Order to provide
for events which have not been anticipated.
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act; accord-
ingly, a broad cease-and-desist order is necessary and ap-
propriate to effectuate the policies of the Act.
Upon the foregoing findings of fact and the entire
record in this case, I make the following:
CONCI USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 249 is a labor organization within
the meaning of Section 2(5) of the Act.
3. By failing and refusing to transfer employees in the
bargaining unit from Murrysville-Pitcairn to New Stan-
ton in April 1979 in the manner set forth above, Re-
spondent discriminated against said employees in viola-
tion of Section 8(a)(3) and (1) of the Act.
4. By the foregoing conduct, and by threatening em-
ployees that Respondent would not transfer employees
from Murrysville-Pitcairn to New Stanton because of
their protected concerted union activities, Respondent in-
terfered with, restrained, and coerced employees in the
exercise of the rights guaranteed them in Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) 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:
ORDER 4
The Respondent, M & G Convoy, Inc., New Stanton,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to employ as regular full-time drivers at
its New Stanton, Pennsylvania, location all former em-
ployees at Murrysville-Pitcairn, including Carl Adams,
Robert Amantea, Harry Barbus, Charles Burgh, Walter
C. Dollman, David Eld, Frank Komlenic, Robert Kac-
zynski, George Lawrence, Cliff Lockwood, Jr., Toni
Nancy, William Nock, Al Toth, William Walters, Dave
Williams, and Scotty Norris.
(b) Threatening employees that Respondent will not
transfer them to New Stanton because of their protected
concerted union activities.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer immediate employment at New Stanton to
those Murrysville-Pitcairn employees who desired to
transfer to New Stanton, without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of pay in the manner set forth in The
In Ihe event no exceptlons are filed as proeided by Sec 102 46 of the
Rules and Regulations of the National L abor Relations Board, the find-
irg,, conclusits, and recommended Order herein shall, as provided in
Se 102()48 of tie Rules and Regulations, he adopted b) the Board and
hecne ils finlding, conclusions. and Order, and all ibjectlitos Ihereto
.hall he deemed waived for all purpose,.
1058
M & G CONVOY, INC.
Remedy section of this Decision. Former Murrysville-
Pitcairn employees not specifically named in the com-
plaint who may have been deterred from making an ap-
plication as described above shall be placed on a prefer-
ential hiring list by Respondent in the manner outlined 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this
Order.
(c) Post at all its terminals copies of the attached
notice marked "Appendix "' and forthwith mail to the
s In the event that hi () Order is enforced by a Judgment of a United
States Court of Appeals, the vwords in the notice reading "Posted by
Order of the National Lab or Relatlos Botard" shall read "Posted Pursu-
last known address of each former Murrysville-Pitcairn
employee on its payroll on and subsequent to April 1979,
a copy of such notice. Copies of said notice, on forms
provided by the Regional Director for Region 6, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customaily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, w ithin 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order eof the National I abor Relations Board"
1059