Roadway Express Inc.

National Labor Relations Board - Board Decisions

Jul 3, 1980

250 N.L.R.B. 393 (N.L.R.B. 1980)

ROADWAY EXPRESS. INCORPOCRATED
Roadway Express, Incorporated and Robert V.
Brown. Case I -CA-7477
July 3, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAI.E
On December I, 1978, Administrative Law
Judge Robert Cohn issued a Decision in this pro-
ceeding in which he recommended that the Board
defer to a private settlement agreement entered
into between Respondent and the Charging Party,
herein called Brown, purportedly resolving the
issues arising from Brown's discharge, which
formed the basis for the charge herein. According-
ly, the Administrative Law Judge further recom-
mended that the complaint be dismissed in its en-
tirety.'
On October 19, 1979, the Board issued a Deci-
sion and Order Remanding Proceeding to the Ad-
ministrative Law Judge 2 for a decision on the
merits finding, contrary to the Administrative Law
Judge, that deferral to the private settlement agree-
ment in this case would not effectuate the policies
of the Act.
On December 21, 1979, Administrative Law
Judge Robert Cohn issued the attached Supplemen-
tal Decision in this proceeding finding that Re-
spondent did not violate Section 8(a)(3) and (1) of
the Act, as alleged, when it discharged Brown on
September 17, 1977. 3 Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in support of the Ad-
ministrative Law Judge's Supplemental Decision
and in opposition to the General Counsel's excep-
tions.
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 Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
I The private settlement agreement provided for Brown's reinstatement
to his former position with full seniority rights but no backpay In view
of his recommendation that the Board defer to the settlement agreement,
the Administrative Law Judge found it unnecessary to reach the issue of
whether Brown was discharged in violation of Sec. 8(a)(3) and () of the
Act
2 246 NLRB No 28, Member Truesdale concurring and Chairman
Fanning and Member Penello dissenting separatel)
:' All dates hereinafter are in 1977. unless otherwise indicated.
The relevant facts, as found by the Administra-
tive Law Judge, are, briefly, as follows: On Sep-
tember 16, at approximately 9 p.m. one of Re-
spondent's employees, Thomas Allen, set up a one-
man picket line at the entrance to Respondent's
Kernersville, North Carolina, terminal. The picket
line was not authorized by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, Local 391, herein called
the Union, which represents Respondent's produc-
tion and maintenance employees. Shortly thereaf-
ter, about 9:30 p.m. Brown, acting in his capacity
as union steward and with Respondent's approval,
sought unsuccessfully to persuade Allen to end his
picketing.
At approximately 10:30 p.m. Respondent's termi-
nal manager, Ray Flinchum, informed all of Re-
spondent's employees of the picketing and further
warned all employees, including Brown, that par-
ticipation in an unauthorized work stoppage could
result in their discharge. Shortly thereafter, Brown,
again with Respondent's approval, made another
effort to persuade Allen to end his unauthorized
picketing, but was again unsuccessful.
Later that evening, several employees who were
scheduled to report for work at 11:30 p.m. refused
to do so, choosing instead to honor Allen's picket
line. As a result, Respondent began drafting em-
ployees who were currently working, including
Brown, for 2 hours of overtime work. 4 However,
when advised by Respondent's terminal operations
manager, James Dorn, that he was being drafted to
work overtime, Brown informed Dorn that he
would be unable to work overtime because he did
not have his car and had already made arrange-
ments to borrow one from a friend, after work, at a
service station located I mile from Respondent's
terminal.
At 3:30 p.m., at the end of his regular work shift,
Brown, in the presence of company supervisors,
clocked out in the usual manner 5 and obtained a
I Respondent and the Union have an agreement whereby Respondent
is required to give employees being drafted for overtime work at least 2
hours' notice before the end of their normal work shift. It is undisputed
that Brown was given the required 2-hour notice of the overtime draft
' According to Brown, at the end of their shift, employees are re-
quired to remove their timecards from a rack located in the dock work
area, enter into a nearby office, where they clock out, and thereafter
leave their timecard with their supervisor Brown testified that he fol-
lowed the above procedure and that he clocked out and placed his time-
card in front of his supervisor. Dorn. in the presence of Supervisors Neill
Connor and Bobby Turner. While conceding that they could have been
in the office when Brown clocked out at 3 30 a.m, Dorn and Connor
nevertheless testified that they did not see Brown clock out and leave,
and Turner, who did not testify with respect to whether he was in the
office at that time, also denied having seen Brown clock out or leave
Furthermore. Dorn denied being told by Brown that he (Brown) could
not work overtime because he had to pick up a car at a nearby service
station [he Administrative Law Judge failed to make specific credibility
Continued
250 NLRB No. 61
3.193
ID)IFCISIO)NS OF NA'IIONAL ABO()R REI ATIIONS B()ARI)
ride to the service station from fellow employee
Clay Ferguson. Upon arrival at the service station,
Brown learned that the car had been left at his
home. Thereafter, Brown and Ferguson drove to a
restaurant located adjacent to Respondent's termi-
nal where union officials and employees honoring
the picket line had gathered.
According to Brown's testimony, which is un-
controverted, upon arriving at the restaurant, he
met with Union Agents Hayes Church and Everett
Mabe and it was decided that they would "talk to
the men and try to get them to cross the [picket]
line and go to work and not support Allen." Short-
ly after Brown began his efforts to end the work
stoppage, Flinchum appeared and informed Brown
that he was being discharged for leaving work and
participating in the unauthorized work stoppage.
Flinchum, after some discussion, also advised the
employees who had refused to cross the picket line
that they were being suspended for 2 weeks. Fur-
thermore, he also informed Allen, who by this time
had been persuaded by Brown to end his picketing,
that he was being suspended for 30 days.
The Administrative Law Judge, while finding
that Brown had engaged in protected activity
when, on two separate occasions on the evening of
September 17, he sought to persuade Allen to end
his picketing, nevertheless concluded that Brown
had "abandoned the protective mantle of Section
7" when, after leaving work, he "returned to the
vicinity of the terminal, not with an intention of
working, but in an apparent attempt to voluntarily
assist in resolving the dispute." The Administrative
Law Judge noted that Brown had not informed
Respondent of his continuing efforts to persuade
Allen to abandon his picketing and that, under
these circumstances, Respondent could view
Brown's presence among the employees honoring
the picket line as participation in the authorized
work stoppage. Accordingly, he found that Re-
resolutions concerning the above conflicting testimony. However, we
note that in sec. III of his original Decision (see fn 2, supra), the Admin-
istrative Law Judge stated that "Brown advised Dorn that he would not
be able to work overtime since he (Brown) did not have a car and had
made arrangements to secure one from a friend after work at a service
station" nearby. Furthermore, in his Supplemental Decision, the Adminis-
Irative Law Judge notes that while Respondent "sought to draft him for
overtime work following the end of his shift," Brown was "apparently
able to escape such draft" and, had Brown not returned to the vicinity of
Respondent's terminal, but gone straight home, "it is doubtful that this
case would have ever arisen." Thus. it is apparent to us, and we so find,
that the Administrative Law Judge, through the above-mentioned com-
ments, was implicitly crediting Brown's testimony that he informed Dorn
of the reasons why he could not work overtime and that Respondent
knew, and did not object, to his clockiing out and leaving the terminal at
the end of his normal shift. Furthermore. Brown's discharge letter, which
states only that Brown was discharged for "participating in an unauthor-
ized work stoppage," and makes no mention of the fact that Brown was
discharged for leaving work early, clearly indicates that, in discharging
Brown, Respondent was motivated by his presence among the employees
honoring the picket line and not for his alleged refusal to work overtime
spondent did not violate Section 8(a)(3) and (1) of
the Act, as alleged, when it discharged Brown for
purportedly participating in theunauthorized work
stoppage. Contrary to the Administrative Law
Judge, and for the reasons set forth below, we find
that Brown's discharge violated Section 8(a)(l) of
the Act.
As noted above, the record evidence establishes
that Brown, contrary to Respondent's contention,
was not participating in the unauthorized work
stoppage but rather was engaged in efforts to end it
when he was discharged. Indeed, it appears from
the above facts that Brown was merely exercising
his authority as union steward when, on his own
time and in conjunction with other union officials,
he sought to obtain from employees honoring the
picket line compliance with the provision in the
collective-bargaining agreement prohibiting strikes
or walkouts. Under these circumstances we find,
contrary to the Administrative Law Judge, that
Brown's conduct in returning to the terminal area
and attempting to end the work stoppage clearly
constituted protected activity within the meaning
of Section 7 of the Act. Furthermore, we find that
his discharge for having engaged in such protected
activity violated Section 8(a)(1) of the Act.
In this regard, it should be noted that Respond-
ent's assumed good-faith, but mistaken, belief that
Brown had participated in the work stoppage does
not constitute a valid defense to the unlawful dis-
charge. Rather, it is well settled that an employer
violates Section 8(a)(1) of the Act by discharging
an employee for misconduct arising out of a pro-
tected activity, despite the employer's good faith,
when it is shown that the misconduct never oc-
curred. 6 In the instant case, aside from Respond-
ent's mistaken belief that Brown had participated in
the unauthorized work stoppage, there is no evi-
dence in the record to indicate that Brown had en-
gaged in any misconduct whatsoever. Furthermore,
unlike the Administrative Law Judge, we are not
convinced that, under the facts herein, Respondent
had reasonable cause to view Brown's presence
among employees refusing to cross the picket line
as participation in the unauthorized work stoppage.
Indeed, the fact that Respondent had knowledge of
and consented to Brown's earlier attempts to end
the picketing should have put Respondent on
notice that Brown may not have been participating
in the work stoppage but rather may have been
trying to end it. Under these circumstances, we
find that Respondent, at the very least, had a duty
to inquire as to the reasons for Brown's presence
among the other employees. Instead, Respondent,
' N.VL.R.B v. Burniup & Sins. Inc., 179 U S 21 (1964)
394
ROADWAY 'XI'PRESS. INCORP()RAT:ID
in a precipitate manner, discharged Brown without
first affording him the opportunity to explain his
actions. Consequently, for the reasons stated. we
conclude that, by discharging Brown, Respondent
violated Section 8(a)(1) of the Act.
THE REMEI)Y
Having found that Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(1) of the Act, we shall order that it cease and
desist therefrom, and from in any like or related
manner infringing upon its employees' Section 7
rights. Respondent shall also be ordered to make
Brown whole for any loss of pay or other benefits
he may have suffered as a result of his unlawful
discharge,7 with interest to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Roadway Express, Incorporated, Kernersville,
North Carolina, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or in any other manner discrimi-
nating against its employees for engaging in pro-
tected activity.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Make Robert V. Brown whole for any loss of
pay or other benefits he may have suffered during
the period between his unlawful discharge on Sep-
tember 17, 1977, and the date of his reinstatement
on October 11, 1977, with interest, to be computed
in the manner set forth in the section of this Deci-
sion and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
A.. noted in fn I. iupra. Broun. pursuant to the private settlement
agreement. ,as reinstated io his foirmer positiorn .ilh full seniority right,
but no backpay Accordingly, he shall be entitled to backpa) for the
period between the date of his discharge. September 17. and the dale of
his reinstatement. O()tober II
" See, generally. AIi Plumbing d /ltearring Co, 18 NLRB 716 (1962)
(c) Post at its place of business in Kernersville,
North Carolina, copies of the attached notice
marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for
Region 11, after being duly signed by an author-
ized representative, of the Company, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places at all locations where notices to employees
are customarily posted. Reasonable steps shall be
taken by the Company to insure that said notices
are not altered, defaced, or covered by any other
material.
(d) Notify said Regional Director for Region 11.
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
MEMBER PENELLO, dissenting:
In full accord with principles of deferral articu-
lated in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971), and Spielberg
.Manufacturing Company, 112 NLRB 1080 (1955),
and for the reasons detailed in my dissent to the
Board's previous Decision in this proceeding, 0 I
would defer to the private settlement of employee
Brown's grievance. Litigation of the unfair labor
practice charge had yet to demonstrate that the
result reached by the settlement to which Respond-
ent, the Union, and Brown agreed is clearly repug-
nant to the purposes and policies of the Act. Ac-
cordingly, I would dismiss the complaint in its en-
tirety.
" In the event Ihat Ihis Order is enlfored by .; Judgment (f a Ulnited
States Court of Appeals. the word, in the notice reading "'osted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a .ludgmenlt of the United State. Court of Appeals Enforcing anl
Order of the National l.abor Relations Board
'o 246 NLRB No 28 (1979)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An 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 discharge or in any other
manner discriminate against Robert V. Brown,
or any other employee, for engaging in activi-
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties protected by Section 7 of the National
Labor Relations Act, as amended.
WE WIl I. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their Section 7 rights.
WI WILl make employee Robert V. Brown
whole for any loss of pay or other benefits he
may have suffered as a result of our discrimi-
nation against him.
ROADWAY EXPRESS, INCORPORATED
SUPPLEMENTAL DECISION
STATrMENT OF tHE CASE
ROBERr COHN, Administrative I.aw Judge: On De-
cember 1, 1978, 1 issued a Decision in the above-cap-
tioned matter in which it was found and determined that
a private settlement agreement between Robert V.
Brown, the Charging Party herein, and Roadway Ex-
press, Incorporated, herein the Respondent, acted as a
bar to the further prosecution of the case. It was there-
fore recommended that the complaint herein be dis-
missed in its entirety. In view of such finding, the merits
of the controversy were not reached.
By a Decision and Order dated October 19, 1979,' a
majority of the Board disagreed with such finding and
conclusion and remanded the case to me for disposition
on the merits. Pursuant to such remand, I have reviewed
the entire record, including the briefs filed by counsel,
and make the following:
FINDINGS AND CONCLUSIONS
The essential facts giving rise to the dispute in this
case were set forth in the original decision and will not
be restated here. To briefly recapitulate, they show that
on the evening of September 16, 1977, at approximately
9 p.m., a dock employee (Thomas Allen) of the Re-
spondent, at its Kernersville, North Carolina, terminal,
established a one-man, unauthorized picket line at the en-
trance of the terminal. 2 Shortly after Respondent's man-
agement learned of the existence of the one-man picket
line, at or about 9:30 p.m., the Charging Party, as union
steward, acted as a liaison between Respondent and
Allen, and assertedly sought to persuade Allen on two
occasions to cease picketing. However, such efforts were
unsuccessful.
At approximately 10:30 p.m., Respondent's terminal
manager, Flinchum, called a meeting of all employees to
advise them of the picketing, and of the fact that it was
unauthorized and contrary to the provisions of the col-
lective-bargaining agreement. He warned all employees,
including the Charging Party, that they could be dis-
charged for participating in an unauthorized work stop-
} 246 NLRB No 28.
2 At all times material to the case, the Respondent was in contractual
relations with Local 391 of the Teamsters Union, as c-ollective-hargaining
agent for the employees There is no contention that the conduct of
Alien on this occasion was other than unauthorized under the then exisl-
ing collective-hargaining agreement hetwueen those parties
page. Flinchum also notified the Union's business agents
of the existence of the picket line.
At approximately 11:30 p.m., some employees who
were scheduled to commence work at that time refused
to do so, honoring the picket line. Shortly thereafter, the
Respondent sought to draft some of the currently work-
ing employees, including the Charging Party, to work
overtime, to make up for the loss of the employees who
failed to work because they honored the picket line. The
Charging Party, who was scheduled to leave work at
3:30 a.m., advised the Respondent that he would not be
able to work overtime because he did not have a car;
that he had made arrangements with a fellow employee
(Ferguson) to secure a car from a friend after work at a
service station in Kernersville. Accordingly, the Charg-
ing Party clocked out at his normal quitting time and
drove to the service station with Ferguson. The car was
not at the service station when they arrived and the
Charging Party learned that the car had been left at his
home. Whereupon, rather than going home, the Charg-
ing Party rode back with Ferguson to a restaurant which
adjoins the Respondent's property, where he met and
mingled with union officials and the group of employees
who were honoring the picket line. Shortly thereafter, at
approximately 4:30 a.m., the Respondent's terminal man-
ager, Flinchum, approached the group and advised the
Charging Party that he was discharged for leaving work
and participating in an unauthorized work stoppage in
violation of certain articles of the labor contract.
Analysis
There can be no question but that during the evening
hours of September 16, the Charging Party, as union ste-
ward, engaged in activities protected by Section 7 of the
Act while acting as liaison between the picketers and
management in attempting to resolve the dispute. How-
ever, following the engagement in such activities, he re-
turned to work at approximately II p.m., and worked
the remainder of his shift without having any further
connection with the picket line. The facts further show,
as noted above, that the Respondent sought to draft him
for overtime work following the end of his shift, but that
he was apparently able to escape such draft through the
excuse of having to leave the terminal with a fellow em-
ployee to pick up his car at a nearby service station.3
However, when the car was not there, the Charging
Party, rather than proceeding on to his home, opted to
return to the vicinity of the Respondent's terminal, and
concededly met and mingled with other employees who
were honoring the unauthorized picket line.
By engaging in the above-described conduct, it is my
view that the Charging Party abandoned the protective
mantle of Section 7, which surrounded him during the
evening hours of the previous day. As far as the record
shows, neither the business agents of the Union nor the
management of the Respondent had requested that the
Charging Party further act as union steward in attempt-
ing to resolve the dispute. Rather, as the facts show, the
' The Respondent does not agree that Brown was excued. However,
Brown testified that at 3:30 a m he clocked out in the usual manner, in
the presence of company supervisors. who said nothing to him
396
ROADW A\Y IXPRISS. INCZORPORAXIIED
Respondent had sought to require his continued employ-
ment on the morning of September 17. due to the exist-
ence of the picket line. Had the Charging Party not vol-
untarily returned to the vicinity of the Respondent's ter-
minal, but proceeded home, following the end of his
shift, it is doubtful that this case would has e ever arisen.
However, as the facts show. he returned to the vicinity
of the terminal, not with an intention of working, but in
an apparent attempt to voluntarily assist in resolving the
dispute. However, in so doing, he never advised the Re-
spondent. Under these circumstances. it is my judgment
that the Respondent was entitled to view the conduct of
the Charging party as similar to that of the other em-
ployees who were honoring the picket line. i.e.. as par-
ticipating ill unauthorized conduct under the labor con-
tract, and therefore, unprotected under the Act. 4 Thus,
the Respondent was entitled under the contract to disci-
pline him along with other employees for their engage-
ment in such activities,5
4 There is esidence ti Ihe record thatl he mana;gementt of tIh Respond-
ent beliesed that "the walkloutl wa staged anld rlanned h slew;ard R V
Brown alnd checker T I Allen F rom Ihe night of Seplember 14, 1177,
Browl, and Allen acli'cly sotliciled he supporl of an111 uiulhorizcd work
stoppage from ither nmembnhers f Ihe Aulrk Ilorc " See slnllenl¢lI if Rc-
sptde lt 'S represetllaltie 11t he subsequ eni griecyllnlc c lmitmltlce !c herillg,.
(iC I xh 2. p
2
, ,' tiq
tIn view of the factl hat thc Charging Party s a% ulilln il stward. i
would seecm reas.onable thal he 'isuld he held to aI higher stanldard rof
In view of all of the foregoing. I 'sill recommnied that
the complaint be dismissed in its entiretS.
Co.,( I t l()NS ()1 1 \w'
1. The Respondent is an employer engaiged in com-
merce withinl the meaning of the Act.
2. The Union is a labor organiztltion within the meanl-
ing of Section 2(5) of the Act.
3. The Respondent did not, as alleged in the coni-
plaint, engage in conduct iolali. e of Sectioni X(a)(1) and
(3) of the Act."
[Recommended Order for dismissal omitted from pub-
lication.]
Cori1dlut IIIt ithesC clrlmlallllncclt IthIn I ()ould ai ranlk (tidl-il cI.'lll11t) .'t C
Ac,,crlilrigl. the Respondentt sits cnllilcl to mete 1it it;1r itire sLseItc
fornml f disc plinlc
hcre is i1(i c.ldelte that the Respodlletl t 1w, l io nalllalctl lnillluI
111t clulsilderatilots ill regilrd tIo It, Ireatlltmcl ir thte Chilrg1 ig t'.lltt A%
Ihe Itcord shl,s. tIhe Relpondeti illld IhCe nioll hitd h.ll i1I i1 hli11 t111i
otis collectivce-hargailinlng relilatollhlp for ntlilli it Lir prior to tih '%elIItS
tii this acis