McLean Trucking Company

National Labor Relations Board - Board Decisions

Sep 15, 1981

257 N.L.R.B. 1349 (N.L.R.B. 1981)

MCLEAN TRUCKING COMPANY
McLean Trucking Company and William R. Poss
Teamsters Local Union No. 728 and William R.
Poss. Cases 10-CA-15804 and 10-CB-3322
September 15, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 31, 1981, Administrative Law Judge
J. Pargen Robertson issued the attached Decision
in this proceeding. Thereafter, the Respondent
Union and the General Counsel filed exceptions
and supporting briefs.
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.2
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
The Respondent Union 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 re-
spect to credibility 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 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing his findings.
While we agree with the Administrative Law Judge that the Respond-
ent Union did not violate Sec. 8(b)(1)(A) of the Act by the manner in
which it presented Poss' grievance at the arbitration hearing, we do not
rely on the Administrative Law Judge's reasoning that the Union's con-
duct was privileged merely because its representative "did everything
Poss' attorney requested him to do at the arbitration proceeding." It is
well settled that once a union undertakes to present a grievance to an
arbitral forum, its statutory obligation includes the duty to act as an ad-
vocate for the grievant. Truck Drivers. Oil Drivers and Filling Station and
Platform Workers Local ,Vo. 705. International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America (Associated Transport.
Inc.), 209 NLRB 292 (1974). Therefore, a union may not normally defer
to the grievant's private attorney its statutory obligation in this regard
merely because the grievant has retained independent counsel in connec-
tion with an employment-related matter separate and distinct from the
grievance-arbitration process. Accordingly, in the instant proceeding we
find that the Union fulfilled its statutory obligation, not on the primary
basis of the Union's presentation of documents funished by the grievant's
attorney. as found by the Administrative Law Judge, but rather upon the
substantial obstacle faced by the Union at the arbitration which drastical-
ly impeded its ability more vigorously to present Poss' grievance.
namely, Poss' voluntary absence from the hearing and his consequent fail-
ure to testify in support of the grievance. In these circumstances, we
cannot conclude that the Union engaged in perfunctory grievance han-
dling in violation of the Act by failing more fully to present evidence at
the hearing.
2 Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Oympic Medical Corporation. 250
NLRB 146 (1980)
257 NLRB No. 179
Order of the Administrative Law Judge and
hereby orders that the Respondent Employer,
McLean Trucking Company, Duluth, Georgia, its
officers, agents, successors, and assigns, and the
Respondent Union, Teamsters Local Union No.
728, its officers, agents, and representatives, shall
take the action set forth in said recommended
Order.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge:
This case was heard on February 2 and 3, 1981, in Atlan-
ta, Georgia. The charges were filed on May 17, 1980. An
order consolidating cases and complaint and notice of
hearing issued on July 10, 1980. The complaint alleges
that Respondent Employer (McLean) engaged in several
instances of 8(a)(1) violations and an 8(a)(1) and (3) vio-
lation by discharging employee William R. Poss. The
complaint also alleges that Respondent Union processed
a grievance of employee Poss in a perfunctory manner in
violation of Section 8(b)(1)(A) of the Act.
Upon the entire record, my observations of the wit-
nesses and after due consideration of the briefs filed by
the General Counsel, Union, and McLean, I hereby
make the following:
Findings'
William Poss was employed at McLean's Duluth,
Georgia, terminal from March 1979 to January 1980.
The General Counsel alleges that, from fall 1979 until his
termination, Poss lodged several complaints with
McLean concerning employee working conditions, in-
cluding complaints regarding the collective-bargaining
agreement. The General Counsel also contends that Poss
complained about an alternate steward in the Union. In
that regard, Poss requested a meeting during working
time for the purpose of the employees voting to remove
the alternate steward. Poss' request for time to meet was
denied by McLean. Allegedly as a result of Poss' com-
plaints, which the General Counsel contends were pro-
tected under the Act, Poss was discharged. The General
Counsel alleges that the Union violated the Act by han-
dling Poss' discharge grievance in a perfunctory manner.
William Poss was employed as a driver-checker on the
night shift. Poss was a member of Local No. 728.
' Both Respondents admitted the commerce allegation in the com-
plaint. Upon the basis of those allegations and admissions, I find that Re-
spondent Employer is and has been at all times material herein an em-
ployer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act. Both Respondents also admitted, and I find, that the Respondent
Union is and has been at all times material herein a labor organization
within the meaning of Sec 2(5) of the Act.
The complaint also alleges that Respondents were parties to a collec-
tive-bargaining agreement. On the basis of the complaint allegations and
the answers of Respondents. I find that at times material herein Respond-
ents were parties to a collective-bargaining agreement regarding a unit of
employees which included employee William R Poss
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Background
On a few occasions before November 1979, Poss com-
plained to management about various conditions. One oc-
casion happened around August 1979. According to
Poss' testimony, he refused to drive a truck. Poss
checked the load and found the load was so heavy that
one side of the truck was touching the wheels. Poss
complained that he would not pull the load because it
was unsafe. Tom Clelland testified that he was the eve-
ning dispatcher in August 1979,2 and that on one occa-
sion in August 1979 Poss refused to drive a truck on the
assertion that the truck was unsafe. Clelland admitted
that there was a lot of weight on the truck or it had bad
springs, with the result that it "looked like it was real
close to the tires."
In consideration of the discharge allegation, I note that
Poss' refusal to drive an overloaded truck constitutes
protected concerted activity. The collective-bargaining
agreement which existed between the Respondents at
that time included, inter alia, the following: "The Em-
ployer shall not require employees to take out on the
streets or highways any vehicle that is not in safe operat-
ing condition, including but not limited to acknowledged
overweight . . . ."
"When an employee makes complaints concerning
safety matters which are embodied in a contract, he is
acting not only in his own interest, but is attempting to
enforce such contract provisions in the interest of all the
employees covered under that contract." Roadway Ex-
press, Inc., 217 NLRB 278, 279 (1975); T & T Industries,
Inc., 235 NLRB 517 (1978); cf. Pink Moody, Inc., 237
NLRB 39 (1978).
In September, according to Poss' testimony, he had a
dispute with Tom Clelland over his timecard. Poss testi-
fied that he experienced mechanical problems on his
truck resulting in his returning late to the terminal.
When he arrived, Clelland had already punched him out
on the timeclock. Poss protested to both Clelland and
Terminal Manager Gregory Raines that he had been im-
properly denied time. According to Poss, Raines agreed
to remedy Poss' complaint; however, Raines asked Poss
not to tell anyone that Poss was being paid for the extra
time. Poss told Raines "that's not right.... Ya'll've
been doing it to the other employees out there it just not
right." Poss testified that despite Raines' request, he im-
mediately told three or four employees about the inci-
dent. As shown below, I credit Poss' testimony. I find
that his complaint flowing from Raines' direction not to
tell other employees constitutes protected concerted ac-
tivity. "[An individual's actions may be considered to be
concerted in nature if they relate to conditions of em-
ployment that are matters of mutual concern to all the
affected employees." Air Surrey Corportion, 229 NLRB
1064 (1977).
Following the above occurrences, an incident arose in-
volving alternate steward James "Butch" Bullock.
Around the first of October, Poss was told by Bullock
2 Clelland was not alleged to be a supervisor. However, Clelland was
called by McLean. In response to questions from McLean's attorney,
Clelland testified that William Poss worked under his supervisory con-
Irol.
that Bullock would not claim overtime because the over-
time situation occurred because Bullock permitted his
truck to run out of fuel. Poss argued with Bullock that
Bullock's failure to claim overtime deprived other em-
ployees the opportunity to work that time. Poss filed a
grievance over Bullock's failure to claim the overtime.
Poss testified that 2 or 3 days after he filed the griev-
ance, dispatcher Jerry Kellera told him to go into one of
the offices and that he (Keller) would be there shortly.
When Poss entered the office, there were some six to
eight employees present, including Bullock and steward
Clayton Milliken. Milliken had a grievance in his hand.
Milliken asked Poss, "Are you going to push this griev-
ance against Butch?" Poss replied that yes he was. An-
other employee, Dave Willaugby, told Poss "he would
take me out in the parking lot and whup me if I kept
pushing it."
At a later date Poss asked Clayton Milliken about the
grievance. Milliken apologized for the incident in the
office. However, Poss testified that he never heard that
any action would be taken on this grievance.
B. The Alleged 8(a)(1) Violations
1. The forklift incidents
In early November, according to the testimony of
Poss, he complained to dispatcher Ray Dean because he
had noticed an "extra man" operating the forklift. Poss
told Dean that the forklift job was a "union job" and it
should be operated by a senior man. According to Poss,
Dean replied that he would run the dock like he wanted
to. To that, Poss stated that he would have to file a
grievance.
On the following morning he called Union Assistant
Business Agent Wayne Shepherd about the forklift inci-
dent. Shepherd told Poss that he would call McLean's
general manager, Rittenburg, about the matter.
When Poss reported to work that evening, he was
called into Terminal Manager Gregory Raines' office.
Poss testified that Raines told him "he was causing trou-
ble and [Raines] was gonna get my job if I didn't quit."
Poss replied, "I have the right, you know, if I see any-
body's rights being abused, I have a right to tell them
... whether they do anything, that's their business."
Raines stated, "You're gonna have to stop it."
Poss testified that after leaving Raines' office he
clocked in and Ray Dean was standing at the timeclock.
Dean told him, "You've made 'em mad in the office,
Billy." Poss asked what Dean meant and Dean replied,
"Well, I hear you called Wayne Shepherd and he called
Rittenburg and he called Greg and now Greg-he got
all over Greg-and now Greg is getting over me about
your calling down there . . . you've made them mad,
they're gonna get you." Poss asked Dean if Dean was
threatening his job. Dean replied, "No, not me... Just
take it easy and be careful."
In January 1980 employee Willie Benton complained
to Poss that Ray Dean would not let Benton drive the
forklift even though Benton was the senior man on the
' As indicated in fn. 2, supra, the evidence demonstrated that dispatch-
ers exercised supervisory authority.
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MCLEAN TRUCKING COMPANY
dock. As Poss and Dean were talking, Dean walked up.
Poss told Dean that it "seems like we're having a prob-
lem about this lift again, Ray." Dean replied that he
would run the dock like he wanted to. The following
day Raines called Poss into his office and asked Poss
about the problem with Benton. Raines then told Poss
that he did not have the right to be telling employees
their rights. Raines admitted instructing Poss that he did
not have the authority to instruct employees on their
union rights during their shift.
The collective-bargaining agreement and its incorpo-
rated supplemental agreement provide for the considera-
tion of seniority in, among other things, the "bulletining
of jobs." No effort was made to show that Poss' com-
plaint about the forklift job did not fall within the scope
of those provisions. "It is well established that efforts to
enforce the provisions of an existing collective-bargain-
ing agreement, even if made by a single employee, con-
stitute concerted activities protected by Section 7 of the
Act." (Interboro Contractors Inc., 157 NLRB 1295, 1298
(1966).) As shown below, I credit Poss' testimony. I find
that Raines' comments and threat violate Section 8(a)(l).
(Interboro Contractors, supra.)
2. Raines' phone calls
Poss testified that in early December 1979 two fellow
employees told him they had received phone calls from
Terminal Manager Raines. Employee Randy Leazer told
Poss that Raines wanted to know why he always went
to Poss with his problems. Leazer told Raines that Poss
had been around longer and that, if Poss did not know
what was right, he would call the union hall and ask.
Leazer said that he told Raines that that was more than
anyone else would do for them. Poss testified that later
employee Danny Rogers came to him and told him the
same thing as Leazer.
Gregory Raines admitted calling a number of night-
shift employees in November or December when he ob-
served what seemed to be "a division" among the em-
ployees, with some of the employees being loyal to Poss
and some loyal to alternate steward Bullock. Raines ad-
mitted that Randy Leazer was one of the employees he
called. Raines admitted telling the employees not to go
to Poss, but, if they wanted their problems solved, they
should come to either Raines or their steward.4
Although Poss' testimony regarding Raines' phone
calls was of a hearsay nature, I have decided to credit
what he was told by Randy Leazer, in view of Raines'
admissions. Moreover, there was no objection to the re-
ceipt of Poss' above-mentioned testimony. Leazer's com-
ments demonstrated that Poss was assisting the employ-
ees in their relationship with the Union. Also, Raines ad-
mitted that his calls to employees arose out of difficulties
between Poss and the alternate steward. Therefore, the
evidence shows that the calls were precipitated by con-
' Originally under questions from counsel for the General Counsel,
Raines admitted telling the employees: "I told them thatl he's not-they
were not going to get a problem solved by Mr. Poss-to not to go to
him." Later, when Raines was recalled by McLean's attorney. Raines
denied that he instructed the employees not to talk to Poss about their
problems. I credit Raines' admission that he did tell the employees not to
go to Poss
certed activities and union activities of Poss and other
employees. Raines, by questioning Leazer as to why he
went to Poss, was engaging in illegal interrogation into
those activities in violation of Section 8(aK)). By direct-
ing the employees not to go to Poss, McLean, through
Raines, engaged in further 8(a)(l) activity by interfering
with its employees' Section 7 rights.
3. The "extra" employee incident
During November or December another incident arose
when an "extra" employee left early and told Poss and
several other employees that he would be paid for time
not worked. The employee said that he had worked an
hour overtime the night before without pay and the
Company was now compensating him by letting him off
early. Poss asked alternate steward Bullock, who was
among the employees present, what he thought. Bullock
replied that he did not care, that he "wasn't getting into
no trouble." Subsequently, Poss and employee Danny
Stephens complained to the dispatcher, Ray Dean. Al-
though Dean originally indicated he planned to grant the
time, he subsequently agreed that he would not give the
"extra employee" time which he did not actually work.
As indicated above, activity in furtherance of the collec-
tive-bargaining agreement is protected concerted activi-
ty. (Interboro Contractors, Inc., supra.)
4. The quest to remove Bullock
Poss subsequently tried to have Bullock removed as al-
ternate steward. Around the first of January 1980, Poss
sought to hold a meeting with employees for the purpose
of voting to remove Bullock. Poss asked dispatcher Ray
Dean if the employees could have a meeting to handle
some union business. Since the collective-bargaining
agreement states that a steward has to ask for a meeting,
Poss asked Bullock to call the meeting. Bullock asked
him why and Poss told Bullock that he was going to
seek Bullock's removal. Bullock indicated that he would
not ask for a meeting. Poss then asked Dean for a meet-
ing. Dean looked at Bullock and asked if Bullock was
asking for the meeting. Bullock said no. Dean then told
Poss that he could not have the meeting. Poss asked if he
could take an early break and have the meeting with the
rest of the men on their lunch period. Dean again said
no. Poss then asked if he could wait and punch in 30
minutes late. Dean said, "No, you just cannot have the
meeting."
Dean admitted that Poss had asked that he be allowed
15 minutes to hold a meeting with the employees on the
dock. Dean testified that he told Poss that he did not
think it would be appropriate but that he would check
into the matter. Dean testified that he checked the con-
tract and called the operations manager at the Atlanta
terminal and discovered that "any meeting by Mr. Poss
would be an illegal work stoppage. [Poss] had no author-
ity to call such a meeting."
Poss testified that on the day after he asked to be per-
mitted to hold the meeting, he met Plant Manager Raines
in the hallway when he came in to pick up his check.
Raines looked at him, laughed, and said, "I've got you
now." Poss asked Raines what he was talking about.
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raines replied, "You call that unauthorized meeting last
night." Raines directed Poss to come into his office. Poss
asked if it concerned his job. When Raines indicated that
it did, Poss asked for union representation. Pursuant to
Poss' request, a meeting was subsequently held in the
presence of steward Zeno Douglas and alternate steward
Dale Venters. According to Poss' testimony, at the be-
ginning of the meeting Raines laughed again and repeat-
ed, "Well, I've got you." Poss mentioned that he did not
know what the trouble was; he had just asked for a
meeting. Poss testified that Raines asked, "What did you
want the meeting for?" Poss replied that it concerned
union business and that, since Raines was a part of man-
agement, it had nothing to do with him. According to
Poss, Raines then asked Dale Venters if he knew what
the meeting was about and Venters replied that he did
not know. Poss testified that Raines told him that he had
been there a "bunch of times which most of the times
you have been right, but you are wrong on this one."
Poss stated, "Well, I still can't see the point. I said I just
asked for it, I didn't get it." According to Poss, Raines
then said, "This habit of yours calling the union is going
to stop . . . if you want to go by this union contract,
... I can go by it .... " Poss replied, "That's what
they made it for [they] way I understood it." Raines then
stated, "Well, me and Mr. Venters has sat down and
made concessions to it." Poss asked what kind of conces-
sions. Raines replied, "Things concerning this lift." Poss
complained that it was not fair to permit extra men to
bid on the forklift job since most of those people have
extra jobs to go to. Other working conditions, including
the lunch periods, were also discussed.
Poss testified that Raines asked him why he always
called the union hall. Poss replied that nobody around
there knew what the rules were. According to Poss,
Raines told him he was going to have to stop it. Poss re-
plied that he would call down there anytime he wanted
to. Poss testified that Raines replied, "Well . . . I can't
handle Wayne Shepherd, but McLean have people that
can."
According to Poss, Raines asked him again if he
would tell him what the meeting was about and Poss re-
plied no. Raines then suggested to Douglas that they
have a meeting to see what the problems were. Poss tes-
tified that he asked if he could come to the meeting and
Raines originally said that he could not. Poss complained
that that was not fair, and Raines stated that Poss could
come if he would follow Raines' instructions. Raines
stated that he wanted Dale Venters to take notes and
that if Poss brought up any of the comments made
during the meeting there with Raines, that he, Raines,
wanted the meeting stopped.
Poss testified that Raines stated during the meeting
that he was going to fire Poss and everybody on the
night shift if Poss did not quit causing trouble.
Gregory Raines admitted that he had called Poss into
his office subsequent to Poss asking for a meeting and
that Poss asked to have a steward present. Raines testi-
fied, "Basically, I wanted to know why he wanted to
stop the shift and hold a meeting." Raines testified that
Poss was very vague and did not want to discuss his re-
quest for a meeting. Raines said that he let Poss know
that he was not authorized to hold a meeting, "that we
would consider that an illegal work stoppage." Raines
admitted that during that meeting Poss brought up sever-
al things he seemed to be dissatisfied with, including the
lunch hours and the lift job. As to the other factors in-
cluded in Poss' testimony, Raines denied their occur-
rence. Raines denied that he told Poss that the practice
of calling the union hall would have to stop. Raines
denied telling Poss that he and the union stewards had
worked out everything and that Poss would have to go
along with the program. Raines denied that he told Poss
that Poss was not the union steward. Raines denied that
he threatened to fire Poss or that he told Poss that he
could not attend a union meeting called by Zeno Doug-
las. Raines also denied telling Poss that he could attend a
union meeting only if he did not discuss matters which
were raised during his meeting with Poss. Raines denied
telling Dale Venters to write down everything that was
said in the union meeting or to terminate the meeting if
William Poss spoke up.
Raines did admit that he made a statement to Poss that
during the shift Poss was not the steward and the em-
ployees should go to the union steward if they had prob-
lems.
Discussion
Venters denied Raines told him to take notes at the
union meeting or that Raines told him to terminate the
meeting if Poss spoke out. Zeno Douglas also testified
briefly about the meeting with Raines. Douglas denied
that Raines told Venters to take notes in the union meet-
ing.
I found William Poss' testimony to be credible. I ob-
served his demeanor. He impressed me as a straightfor-
ward witness. I also observed the demeanor of Venters,
Douglas, and Raines. I found that both Venters and
Douglas appeared anxious to identify Poss in a bad light.
Although Douglas worked the day shift and had no op-
portunity to observe the conflicts between Poss and al-
ternate steward Bullock on the night shift, he volun-
teered that Poss had "ragged" Bullock. Douglas also tes-
tified that Poss was wrong to ask for a meeting of night-
shift employees.
On the basis of his demeanor and testimony, I find
Raines to be less than completely believable. I found
portions of Raines' testimony disturbing. At various
times Raines categorized Poss' complaints as typical of
employee complaints in general. In response to a ques-
tion of whether Poss figured prominently in a division
among the night-shift employees, Raines testified that
Poss "was part of it." When asked if Poss had come to
him on other occasions with complaints, Raines respond-
ed, "As well as other employees." It is obvious that
Raines' testimony in that regard unduly suppressed the
fact. The record as a whole, including other comments
by Raines and testimony of other witnesses produced by
both Respondents, demonstrates that Poss was the ac-
knowledged leader in efforts to correct alleged short-
comings on the night shift. Also, as shown above in foot-
note 4, there were direct conflicts in Raines' testimony.
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MCLEAN TRUCKING COMPANY
Therefore, I do not credit Raines' testimony to the extent
it conflicts with other evidence.
Findings
On the basis of credited evidence, I find that Raines
told Poss "I've got you" in regard to Poss' request to
hold a meeting of the night-shift employees to discuss
union business. Raines interrogated Poss, Venters, and
Douglas as to why Poss wanted a meeting. Raines inter-
rogated Poss as to why Poss always called the Union.
Raines told Poss that his practice of calling the Union
would have to stop. Raines implied that he and the union
stewards had compromised several items in the collec-
tive-bargaining agreement. Raines told Poss that he
could attend an employee meeting provided he limited
his activity. Raines threatened to discharge Poss and the
night-shift employees if Poss did not stop causing trou-
ble. I find that by engaging in the above-mentioned ac-
tivities, Respondent Employer through the actions of its
agent Gregory Raines engaged in coercive activities in
violation of Section 8(a)(1). The fact that Poss was not
entitled to a meeting under the terms of the contract
does not remove his actions from the Act's protection.
There was no showing that McLean was prohibited from
granting Poss' request for a meeting and there was no
showing that, by requesting a meeting, Poss was engaged
in improper conduct. I do not imply that McLean was
obligated to grant Poss' request or that, by denying the
request, McLean was acting improperly. However, the
facts indicate that McLean went further and took action
against Poss because he asked for a meeting. The Board
has established that the protection accorded employees'
concerted activities-and I find that Poss' request for a
meeting of employees under the circumstances herein
constitutes an effort to engage in both concerted and
union activities-does not depend upon the merit or lack
of merit of those activities. Hintze Contracting Company,
236 NLRB 45, 48 (1978).
5. Interrogation allegation
Following the above-mentioned meeting in Gregory
Raines' office, Poss had a discussion with Zeno Douglas
and Dale Venters. According to Poss' testimony,
Venters mentioned to Poss that he did not have to take
all that from Gregory Raines. Poss asked Venters and
Douglas why they did not say something. Douglas re-
plied, "Well . . . if I had said anything . . . he would
get my job, too." Poss then stated, "Well, that's why you
are supposed to be here for." Poss testified that he told
Venters and Douglas that he wanted to have a union
meeting that evening to get rid of alternate steward
James "Butch" Bullock.
A meeting was held among employees that evening.
Employees expressed their opinions regarding several of
the issues which had arisen among the night-shift em-
ployees, including driving the forklift, swapping time,
and other matters. According to the testimony of Poss,
at the close of the meeting he asked alternate steward
Bullock if he was going to resign. Bullock replied, "Yes,
I quit." However, Poss testified that during a conversa-
tion on January 17 or 18, with Union Assistant Business
Agent Wayne Shepherd, he asked Shepherd if Bullock
had ever quit. Shepherd stated, "No, Butch didn't quit.
We are not going to let him quit."
On the day following the employees' meeting, Poss
met Gregory Raines in the hall at the terminal. Accord-
ing to Poss, Raines stated, "I heard you was going to be
a union steward." Poss testified that he replied, "I can't
be one. I don't work the right shift." Raines denied
making this statement to Poss. However, for the reasons
mentioned above, I credit Poss. Raines' comment consti-
tutes interrogation in violation of Section 8(a)(1).
C. The Discharge
On January 15, Poss injured his back at work while
unloading a truck. Poss testified that he thought he had
only pulled a muscle or "strained something." He told
dispatcher Ray Dean that his back hurt but he thought
he could continue working. However, about 2 hours
later Poss found the pain was too much. He told Dean
that he would have to go home. Dean permitted him to
go home. Poss left some 4-1/2 hours before the end of
his shift.
Poss did return to work the following evening. Poss
testified that Tom Clelland asked him about his back and
Poss told Clelland that it was not hurting too bad right
then. Clelland told Poss that he would have to indicate
on the previous night's timecard that he left sick or else
he will not be permitted to return to work. Clelland told
Poss that, if his back got any worse, he would have to
fill out some papers. Poss testified that he then told Ray
Dean that his back was hurting somewhat and he did not
want to work overtime. Poss continued working
throughout the shift. Around 5 or 6 a.m. dispatcher Jerry
Keller came in at the beginning of his shift and the end
of Dean's.
Former employee Danny Stephens testified that he
worked with William Poss on January 16. Stephens cor-
roborated Poss' testimony that Poss told Ray Dean that
he did not want to work overtime. According to Ste-
phens' testimony, three employees, including Poss,
Marvin Rhinehart, and Stephens, told Dean that they did
not want to work overtime. Stephens stated that
throughout the shift on January 16 he observed Poss and
it was his opinion that Poss had a hurt back. Stephens
testified that around 7 a.m. Jerry Keller came by the
trailer where Stephens and Poss were working and told
them that they were going to have to work overtime.
Around 8 a.m. Poss told Jerry Keller that he just could
not work anymore and that his back was hurting. Ste-
phens said that Keller told him, "I want you to witness
this." Keller then said that he needed both Stephens and
Poss to work overtime. Stephens told him that it was all
right with him since he had to wait in any event because
the fellow he rode home with had taken a trip to Atlanta
and had not returned at that time. However, Stephens
testified that Poss told Keller "that his back was hurting
him previously from the night before and he had already
worked his eight hour shift and he just absolutely didn't
feel like it." Keller told Poss that he needed him to
work. Poss then asked Keller if he was going to make
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him work and Keller just shrugged his shoulders and
pointed to the timeclock.
Jerry Keller's testimony was in substantial accord with
that of Danny Stephens. However, according to Keller's
testimony, Poss said nothing about his back hurting until
after he had punched out on the timeclock. According to
Keller, Poss did protest working overtime, but it was not
until the conclusion of their discussion of working over-
time after Poss punched the timeclock, and as he was
walking by Keller, that he mentioned that he had hurt
his back.
Findings
There appears to be no question that Poss suffered a
painful injury to his back on January 15. Medical records
demonstrate the results of a mylogram showing "a large
ventral extradural defect at the LS5-SI level extending bi-
lateral inducing impingement on the nerve roots amanat-
ing at this level bilaterally." The medical report con-
cludes "large hearniated nucleus pyposus at the L5-SI
level extending bilaterally." No evidence was offered to
show that Respondent Employer had any grounds to
doubt Poss' injury. Poss was permitted to leave early on
January 15 when he complained of pain.
As to the incidents on January 16, I fully credit the
testimony of Danny Stephens. Stephens impressed me as
candid. Stephens was not personally involved in the con-
troversy. I credit Stephens' testimony that Poss told
Keller that he was in too much pain to keep working on
the morning of January 16.5
On the basis of Stephens' testimony and the testimony
of Poss, I am convinced that Poss did not quit. I find
that Poss told Dean at the beginning of the shift that he
did not want to work overtime. I find that Poss told
both Dean and Clelland that he had hurt his back on
January 15; and, although his back was bothering him
when he reported to work on January 16, it was not too
painful at that time. The credited evidence as a whole
convinces me that Poss was discharged on January 16
and that McLean's asserted basis for terminating Poss
was pretextual.
According to McLean, Poss left them shorthanded
when he declined overtime on January 16. However, it is
apparent from the actions of Keller that nothing was
done to correct the problem. Rather than taking steps to
replace Poss on the overtime work, Keller immediately
commenced building a case against Poss. He asked
Danny Stephens to witness that Poss was refusing over-
time. He asked Stephens to fill out a report of Poss' re-
fusal. Keller then called Dean, getting Dean out of bed,
in an effort to establish that Poss had not told Dean that
he did not want overtime work.
I also find that McLean treated Poss in a disparate
manner. Employees, including both Poss and Danny Ste-
phens, were permitted to leave work without being disci-
To the extent their testimony conflicts with the testimony of Stephens
or Poss, I do not credit Clelland, Dean, or Keller. I base my determina-
tion on the record and on my observation of the witnesses' demeanor. I
specifically credit Stephens' account of the conversation between Poss
and Keller around 8 a.m. when Poss protested against working overtime.
I also specifically credit Stephens' and Poss' testimony that Poss told
Dean that he did not want to work overtime on that shift
plined. On the evening before his discharge, Poss was
permitted to leave because of his back injury. I credit
Danny Stephens' testimony that on one occasion he was
permitted to leave to go deer hunting even though Jerry
Keller had directed him to work overtime. No evidence
was offered showing that employees were ever denied
requests to leave work because of an injury.
On the basis of the above facts, the entire record, and
other elements, including timing, I find that McLean dis-
charged William Poss on January 16 because of Poss'
complaints about conditions covered by the collective-
bargaining agreement and other protected concerted ac-
tivities (see above). (Penn Industries, Inc., 233 NLRB 928
(1977); Newport News Shipbuilding and Drydock Compa-
ny, 233 NLRB 1443 (1977).) McLean thereby violated
Section 8(a)(1) and (3) of the Act.
D. The Alleged 8(b)(1)(A) Violations
1. The alleged threat
The General Counsel alleges that the Union through
steward Zeno Douglas6 threatened employees with repri-
sals if they filed grievances. William Poss testified that he
left a note for Zeno Douglas pertaining to the incident of
Dean giving unearned time to an extra employee (see
sec. B, 3, supra). Douglas worked on the day shift. Poss
said that Douglas called him the next day and that he ex-
plained the situation to Douglas. Poss told Douglas that
the alternate steward was aware of the incident but did
nothing. Poss testified that Douglas told him that he
would talk to the alternate steward. According to Poss,
Douglas then said, "Billy, you're in so much trouble in
this office. I wouldn't advise that you file a grievance on
this." Poss remarked, "Well, it's a poor thing a man
comes in here to do his work, he's got to watch the dock
foreman punching people's timecards." Douglas then
said, "Well, you do what you want to but . . .I
wouldn't file a grievance on it." As indicated above, I
credit the testimony of Poss over that of Douglas. In the
context of Poss' complaint regarding the inaction of the
alternate steward as well as McLean's practice, I find in
agreement with the General Counsel. Douglas' state-
ments to Poss reasonably implied that reprisals may be
forthcoming because, among other things, Douglas was
complaining about the Union's alternate steward. I am
also concerned that this conversation between Poss and
Douglas followed Poss' grievance in October against al-
ternate steward Bullock because Bullock failed to claim
overtime. On that occasion Poss was confronted with
steward Clayton Milliken and a group of employees re-
garding Poss' grievance. During that confrontation one
of the employees threatened to fight Poss (see sec. A,
supra). Therefore, I find Douglas threatened Poss in vio-
lation of Section 8(b)(1)(A). (Peninsula Shipbuilders' Asso-
' The Union admitted that Douglas was its steward. However, the
Union did not admit that Douglas was its agent. The record clearly
proved that Douglas possessed and exercised authority of a steward and
was an agent of the Union. In that regard, the parties stipulated that the
steward was authorized to investigate and present grievances to the Em-
ployer, to collect dues when authorized by the Local, and to transmit
messages and information which originate with and are authorized by the
Local.
1354
MCLEAN TRUCKING COMPANY
ciation (Newport News Shipbuilding), 237 NLRB 1501
(1978); Local 14997, United Steelworkers of America (La-
Porte Plastics Corp.), 244 NLRB 492 (1979).)
2. Poss' grievance
The General Counsel also alleges that the Union en-
gaged in violative conduct by processing Poss' griev-
ances over his January 16 discharge in a perfunctory
manner. In that regard, I find the record fails to establish
the General Counsel's case. The General Counsel rests
its allegation primarily on the Union's failure to call
Danny Stephens as a witness during a March arbitration
hearing.
To the time of the arbitration hearing, there appears to
be no controversy. Poss grieved over his discharge and
the Union processed his grievance to arbitration. More-
over, the evidence is clear that the arbitration proceed-
ing was held in Biloxi, Mississippi, in March and that nei-
ther Poss nor Danny Stephens was present.
Poss testified that he informed his attorney, whom he
retained to pursue his workmen's compensation claim,
that he could not be available at the March arbitration
meeting because his doctor would not let him travel.'
The next thing Poss heard about his arbitration was
during April when he was informed by the Union that
the arbitration proceeding had been held in March and
that Poss had lost.
Neither of Poss' two attorneys testified in support of
his position. Wayne Shepherd, assistant business agent,
was called by the Union. Shepherd testified without re-
buttal that he was contacted on March 14 by an attorney
named Robinson. Robinson indicated that he represented
William Poss. The attorney told Shepherd that he had
some statements and some medical papers that he would
like to send to Shepherd to be presented in evidence at
the arbitration proceeding. Shepherd testified that he re-
ceived the documents sent by Robinson and that he sub-
mitted all those documents into evidence during the arbi-
tration proceeding.
There is no evidence in the record that the Union was
requested to postpone the March arbitration proceeding,
although Poss asked his attorney to seek a postponement.
The unrebutted testimony of Wayne Shepherd shows
that request was not communicated to the Union. There-
fore, I find the Union did nothing wrong in not asking
for a postponement.
It would appear that the most diligent pursuit of Poss'
grievance would include a thorough investigation and
the presentation of the results of that investigation,
which would involve calling as witnesses or presenting
affidavits or depositions from Poss and Stephens. How-
ever, in view of the unrebutted testimony of Shepherd
that he did everything Poss' attorney requested him to
do at the arbitration proceeding, I find no justification
that the Union acted improperly. The record did not
demonstrate that Shepherd was not reasonably justified
in presuming that Poss' attorney had fully investigated
Poss' attorney had previously requested an arbitration hearing set in
February be postponed because Poss was entering the hospital. That
hearing was postponed. Poss testified that when he received notice of the
March hearing, he had just been released from the hospital and his
doctor forbade him to travel to Biloxi.
the matter and was presenting his findings for inclusion
in the arbitration record. Despite evidence of hostility
toward Poss, the record does not demonstrate that the
Union acted perfunctorily. The Union did process the
discharge grievance to arbitration and Shepherd present-
ed everything sent by Poss' attorney. (Cf. Eldorado Man-
ufacturing Corporation, 249 NLRB 646 (1980), and New-
port News Shipbuilding & Dry Dock, 236 NLRB 1470
(1978), where there existed strong evidence in support of
the allegations.)
CONCLUSIONS OF LAW
I. McLean Trucking Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Teamsters Local Union No. 728 is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent McLean, by prohibiting its employees
from discussing terms and conditions of employment
with other employees; by prohibiting its employees from
engaging in protected concerted activities or union activ-
ities; by interrogating its employees concerning discus-
sions they had with other employees concerning their
rights under the collective-bargaining agreement; by
threatening its employees with discharge and other un-
specified reprisals if they discussed employee grievances,
working conditions, and rights under the collective-bar-
gaining agreement with other employees; by prohibiting
its employees from contacting the Union regarding
grievances over working conditions; by threatening its
employees with more stringent enforcement of provisions
of the collective-bargaining agreement if its employees
engaged in protected concerted activities; by instructing
its employees to take notes in a union meeting; and by
interrogating its employees as to why they discussed
their grievances over working conditions with a fellow
employee, violated Section 8(a)(1) of the Act.
4. Respondent McLean, by discharging its employee
William R. Poss on or about January 16, 1980, and there-
after failing and refusing and continuing to fail and refuse
to reinstate Poss because of his concerted activities and
union activities, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act.
5. Respondent Union, by threatening union members
and employees with unspecified reprisals if Poss filed a
grievance under the collective-bargaining agreement be-
cause of his complaint about an alternate steward of the
Union, violated Section 8(b)(1)(A) of the Act.
6. Respondent Union did not violate Section 8(b)(1)(A)
of the Act by processing a grievance in a perfunctory
manner.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices, I shall recommend that they be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
1355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As I have found that Respondent McLean unlawfully
discharged William R. Poss, I shall recommend that Re-
spondent McLean be ordered to offer him immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges. I shall further recommend that Respondent
McLean be ordered to make William R. Poss whole for
any loss of earnings he may have suffered as a result of
the discrimination against him. Backpay shall be comput-
ed as shown in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest as shown in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 8
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 9
The Respondent, McLean Trucking Company,
Duluth, Georgia, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Prohibiting its employees from discussing terms
and conditions of employment with other employees;
prohibiting its employees from engaging in protected
concerted activities or union activities; interrogating its
employees concerning discussions they had with other
employees concerning their rights under the collective-
bargaining agreement; threatening its employees with dis-
charge and other unspecified reprisals if they discuss em-
ployee grievances, working conditions and rights under
the collective-bargaining agreement with other employ-
ees; prohibiting its employees from contacting the Union
regarding grievances over working conditions; threaten-
ing its employees with more stringent enforcement of
provisions in the collective-bargaining agreement if its
employees engaged in protected concerted activities; in-
structing its employees to take notes in a union meeting;
and interrogating its employees as to why they discuss
their grievances over working conditions with a fellow
employee.
(b) Discharging and thereafter failing and refusing to
reinstate its employees because of its employees' concert-
ed activities and union activities.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form, join, or assist a labor organiza-
tion, or to refrain from any and all such activities, or to
engage in protected concerted activities.
2. Take the following affirmative action designed and
found necessary in order to effectuate the policies of the
Act:
(a) Offer William R. Poss immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
s See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
g 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 find-
ings, conclusions, and recommended Order herein shall, as provided by
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.
his seniority or other rights and privileges, and make
Poss whole for any loss of earnings he may have suffered
as a result of the discrimination against him in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Post at its facility in Duluth, Georgia, copies of the
attached notice marked "Appendix A."'° Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized rep-
resentative of Respondent McLean, shall be posted by it
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent McLean to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent McLean has taken to comply herewith.
B. The Respondent, Teamsters Local Union No. 728,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening its members and employees with un-
specified reprisals if employees file grievances under the
collective-bargaining agreement because its members and
employees complain about the Union's alternate union
steward.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed to be necessary to effectuate the policies of the
Act:
(a) Post at its union hall copies of the attached notice
marked "Appendix B."" Copies of said notice, on forms
provided by the Regional Director for Region 10, after
being duly signed by an authorized representative of Re-
spondent Union, shall be posted by it immediately upon
receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent Union has taken to comply herewith.
'° In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
" See fn. 10, supra.
1356
MCLEAN TRUCKING COMPANY
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT prohibit our employees from dis-
cussing terms and conditions of employment with
other employees.
WE WILL NOT prohibit our employees from en-
gaging in protected concerted activities or union ac-
tivities.
WE WILL NOT interrogate our employees con-
cerning discussions they had with other employees
concerning their rights under the collective-bargain-
ing agreement.
WE WILL NOT threaten our employees with dis-
charge and other unspecified reprisals if they dis-
cuss employee grievances, working conditions, and
rights under the collective-bargaining agreement
with other employees.
WE WILL NOT prohibit our employees from con-
tacting the Union regarding grievances over work-
ing conditions.
WE WILL NOT threaten our employees with more
stringent enforcement of the provisions in the col-
lective-bargaining agreement if our employees
engage in protected concerted activities.
WE WILL NOT instruct our employees to take
notes in a union meeting.
WE WILL NOT interrogate our employees as to
why they discuss their grievances over working
conditions with a fellow employee.
WE WILL NOT discharge or fail to reinstate our
employees because of their union activities or pro-
tected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of rights guaranteed them in Section 7 of the
National Labor Relations Act, as amended.
WE WILL offer William R. Poss immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges.
WE WILL make William R. Poss whole for any
loss of earnings he may have suffered as a result of
our discrimination against him, with interest.
MCLEAN TRUCKING COMPANY
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten members or employees
with unspecified reprisals because those members or
employees filed grievances under the collective-bar-
gaining agreement because a member or employee
complains about our alternate union steward.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce members or em-
ployees in the exercise of their rights guaranteed
them in Section 7 of the National Labor Relations
Act, as amended.
TEAMSTERS LOCAL UNION No. 728
1357