Ryder Truck Lines

National Labor Relations Board - Board Decisions

Dec 22, 1978

239 N.L.R.B. 1009 (N.L.R.B. 1978)

RYDER TRUCK LINES
Ryder Truck Lines, Inc. and Ronald W. Carter. Case
9-CA- 12030
Decemoer 22, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY. AND TRUESDAI.E
On September 14, 1978, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Ryder Truck Lines, Inc.,
Cincinnati, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order.
DECISION
MICHAEL 0. MILLER. Administrative Law Judge: This
case was heard on June 9, 1978, in Cincinnati, Ohio, upon
a charge filed by Ronald W. Carter, an individual, on De-
cember 15, 1977, as amended on December 29, 1977, and a
complaint issued by the Regional Director for Region 9 of
the National Labor Relations Board on January 31, 1978.
The complaint alleged that Ryder Truck Lines, Inc.,
herein the Respondent, violated Section 8(a)(1) and (3) of
the National Labor Relations Act by threatening the job
security of, and issuing a warning to, Ronald W. Carter
because of his activity on behalf of Truck Drivers, Chauf-
feurs and Helpers Local Union No. 100, an affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union. Respondent denied the substantive allegations of
the complaint.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and to cross-exam-
ine witnesses, and to argue orally. Briefs were filed by Gen-
eral Counsel and Respondent.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS
Respondent is a Florida corporation engaged in trucking
operations as an interstate motor carrier, with offices and a
terminal at Cincinnati, Ohio, the only facility involved
herein. Jurisdiction is not in issue. The complaint alleged,
Respondent admitted, and I find that Respondent is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The complaint alleged, Respondent admitted, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES
A. Background
Respondent has had a longstanding collective-bargain-
ing relationship with the Union. Their collective-bargain-
ing agreement includes a grievance procedure and provides
for the Union's designation of job stewards and alternate
job stewards. In addition to the contractual grievance pro-
cedure, the parties have a practice of attempting to resolve
grievances informally through meetings of the terminal
manager, the steward (or alternate), and/or the affected
employee.
B. The Relevant Incidents
On November 28, 1977,' Respondent's terminal opera-
tions manager, Jack Barry, issued written warnings to a
number of employees on the 4 p.m.-to-midnight shift for
leaving work early in the evening prior to the Thanksgiving
holiday. Unknown to Barry at the time he issued the warn-
ilgs, these employees had received permission from their
immediate supervisor to leave when they did. According to
Barry's uncontradicted testimony, as soon as one or more
of the employees told him that their leaving had been au-
thorized, he promised to revoke the written warnings.
The job steward at Respondent's terminal is William
Gilliland, a city driver. In December, Gilliland was work-
ing the 3-to-I I-p.m. shift and, because of his driving duties,
was not readily available to the employees as their steward.
When the issue of the warning letters arose in late Novem-
ber, the employees on the affected shift decided that they
needed an alternate steward. Ronald Carter, who had pre-
viously served in that same capacity on another shift, was
elected.
According to Carter, he and employee Larry Gresler ap-
proached Barry, told Barry that Carter was the alternate
job steward, and protested the issuance of the warning let-
I All subsequent dates herein are 1977.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters. Barry agreed that they should not have been issued,
said that he would take care of the matter and, at Carter's
request, agreed to remove and give to the men all copies of
the warning letters contained in their personnel files. Car-
ter allegedly spoke with Barry again on the following day,
at which time Barry refused to recognize Carter as a stew-
ard and spoke disparagingly of the Union. Carter further
claimed that Barry was told, by union officials, of his offi-
cial role at a regular grievance meeting during the first
week in December and that both he and Gilliland spoke
with Barry on December 6 or 7, repeating the request for
the return of all copies of the warnings.
Barry denied that Carter was among the employees who
initially approached him in regard to the warning letters
and further denied that he was informed of Carter's status
as an alternate steward until the incident of December 8,
infra. Carter's testimony is, in part, corroborated by that of
Gilliland. Gilliland testified that he and Carter met twice
with Barry in regard to the warnings, on November 30 or
December I, and again on December 8. He also testified
that he told Barry that Carter was his alternate steward.
While Carter appeared to have a tendency to exaggerate
his testimony and the extent of his official functions, I was
impressed with Gilliland as a forthright, candid witness. I
was less favorably impressed with Barry's testimonial de-
meanor and with his careful qualification of certain an-
swers on direct examination. On the basis of these de-
meanor observations and noting particularly that it would
have been highly improbable for Carter not to have told
Barry of his election as alternate steward and raised the
question of the warnings with him, when he had been elect-
ed specifically to assist in the resolution of this issue, I
credit the testimony of Gilliland and Carter to the extent
that it is mutually corroborative. I find that at some time
between November 30 and December 7 Gilliland and Car-
ter informed Barry of Carter's election and discussed re-
trieval of the warning letters with him. During this same
period, Barry agreed to revoke the November 28 warnings
and to give all copies thereof to the affected employees.
By December 8, however, the copies of the warnings had
not been removed from the personnel files and turned over
to the employees. Carter continued to get questions from
employees about the warnings. When Gilliland came into
the terminal on December 8, Carter suggested that they
speak with Barry. After Carter, who was "on the clock,"
reported to his foreman where he was going, they went into
Barry's office. Gilliland raised the issue of the warnings
and Carter asked for the copies. Barry reiterated that he
was taking care of it and Carter protested that he had said
this before and had not done so. He asked that it be done
at that moment.2 According to Gilliland, Barry told them
that if they did not like the way the matter was being han-
dled, they could file a grievance. Carter responded, "That
figures. You do what you want and the only thing we do is
file grievances trying to change them." At this point, with
tempers beginning to rise, Barry questioned Carter's au-
thority to be present and was again told that Carter was the
alternate steward. Barry refused to recognize him as such,
2 The files in -hich the warnings were kept were located only a few feet from
Barry's office.
because the notification to Barry was oral,3 and ordered
Carter back to work. Gilliland suggested that Carter go,
stating the he could handle the problem. Carter stated, as
he left, "I'll go back to my damn job," and the door slam-
med on his way out of Barry's office. Barry, displaying
anger, got out of his seat and followed Carter out of the
office. They began to argue and, at Gilliland's suggestion,
returned to Barry's office. Barry asked why Carter had
slammed the door. Carter denied that he had slammed it
and said that it just shut hard. Barry told Carter that he
had "an attitude problem" and he "was going to have to
knock off this shit, . . . or things would happen." Carter
asked Barry if Barry was threatening him with his job. Bar-
ry replied, "I'm not threatening you. I'm telling you." Gilli-
land then told Carter to return to work. Carter left. Barry
told Gilliland that he would issue a warning letter to Carter
for slamming the door. Gilliland protested that he did not
think this was right because both men were arguing.4 On
December 13, Respondent sent Carter the following letter,
signed by Barry:
On Thursday, 12/8/77, while in my office your be-
havior became very loud and boisterous without any
provocation. This insubordinate type of behavior will
not be tolerated by Ryder Truck Lines.
Therefore, this is a warning.
Any future occurrence of this nature may result in
more severe disciplinary action. This letter will be-
come a permanent part of your personnel file.
C. Analysis and Conclusions
The Board has long held that while employees are en-
gaged in collective bargaining, including the presentation
of grievances, they are essentially insulated from discipline
for statements made to management representatives which,
if made in other contexts, would constitute insubordina-
tion. See Hawaiian Hauling Service, Ltd., 219 NLRB 765,
766, fn. 6 (1975), and cases cited therein. As the Board has
stated:
. . . the "master-servant" relationship does not carry
over into a grievance meeting, but there is instead at
such a meeting only company advocates on the one
side and union advocates on the other side engaged as
opposing parties in litigation ...
Crown Central Petroleum Corporation, 177 NLRB 322, 323,
fn. 4 (1969). And:
A frank, and not always complimentary, exchange of
views must be expected and permitted the negotiators
if collective bargaining is to be natural rather than
stilted....If an employer were free to discharge an
individual employee because he resented a statement
3
On some, but not all. occasions in the past, the Union had provided
written notification of steward elections. Written notification is not required
by the contract.
In setting forth the foregoing facts, I have essentially credited the testi-
mony of Gilliland, whom I deem to be the most credible, accurate and least
emotionally involved witness of the three. Gilliland's testimony is essentially
corroborated by that of Carter: to the extent that the testimony of either
Carter or Barry differs from the foregoing. I have, after careful consider-
ation. rejected it.
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RYDER TRUCK LINES
made by that employee during a bargaining confer-
ence, either one of two undesirable results would fol-
low: collective bargaining would cease to be between
equals (an employee having no parallel method of re-
taliation), or employees would hesitate ever to partici-
pate personally in bargaining negotiations ...
The Bertcher Manufacturing Corporation, 76 NLRB 526,
527 (1948).
Respondent, however, contends that the meeting be-
tween Carter, Gilliland, and Barry was not a grievance or
bargaining meeting such as would require that Carter be
treated as an equal rather than as a subordinate. I must
disagree. The informal resolution of latent grievances is a
recognized, and indeed essential, component of the parties'
grievance procedure. Without such informal resolutions,
there is a risk of destroying the effectiveness of that proce-
dure by weighing it down with formalized grievances. Un-
less employees are assured that they will be treated as
equals when engaged in the informal resolution stage and
that they will be free from discipline for freely speaking
their minds, they will be discouraged from seeking infor-
mal resolution and encouraged to seek the protections of
the more formalized grievance procedure.
Carter was participating in an informal grievance meet-
ing on December 8 when he engaged in the conduct which
caused Barry to discipline him for "insubordinate" behav-
ior. Contrary to Respondent's contention, the "grievance"
had not been resolved. All Carter and Gilliland had se-
cured was a commitment to resolve the grievance; they
sought compliance with that commitment. And, consider-
ing the ease with which compliance could have been
achieved and the failure to achieve it within a reasonable
time, Carter's impatience was not unwarranted. Moreover,
the reasonableness of Carter's position is irrelevant. See,
e.g., Dreis & Krump Manufacturing, Inc., 221 NLRB 309
(1975).
Respondent contends that all Carter sought was the sat-
isfaction of his "personal desire (in contravention of past
practice) that the warning letters be physically turned over
to the employees...." Barry, however, acknowledged
that return of such warning letters to the employees in-
volved had sometimes been agreed to in resolution of other
grievances and that it was deemed a bargaining chip by
management. It had been agreed to here. Thus, it was more
than a mere personal whim of Carter's.
Respondent further contends that Carter was merely an
employee, on company time, who engaged in "flagrantly
insubordinate" and "reprehensible conduct," and that
since Gilliland was available to process the issue, Carter's
presence was contrary to well-established company prac-
tice respecting the investigation of grievances on company
time by alternate stewards when the steward was available.
The simple answer to these contentions is that Carter, at
the moment in question, was more than an employee. He
was the employees' elected representative. He was not in-
vestigating a grievance; rather he was carrying through on
the resolution of an informal grievance which he had initi-
ated and which involved the employees on his shift who
had elected him.
Finally, I note that while Respondent characterizes
Carter's conduct as "flagrant" and "reprehensible," it
could in no way be deemed so opprobrious as to warrant
denial of the statutory protections. See Hawaiian Hauling
Service, supra. See also Thor Power Tool Company, 148
NLRB 1379 (1964), wherein an employee-grievance com-
mitteeman was heard to utter a reference to the plant su-
perintendent as a "horse's ass" as he left an informal griev-
ance discussion. That employee's statement was deemed
part of the res gestae of the grievance discussion and thus
protected.
Accordingly, I find that Carter's conduct at the Decem-
ber 8 meeting was part of the collective-bargaining griev-
ance procedure and was protected by the Act. The discip-
lining of him for that conduct, which discipline included an
implied threat to his future job security, constituted inter-
ference, restraint, and coercion with respect to Section 7
rights and thus violated Section 8(aXl) of the Act.
General Counsel further contends that the discipline ac-
corded Carter constituted discrimination, in violation of
Section 8(a)3) of the Act. In view of my findings set forth
above, it is necessary to resolve that issue. See Hawaiian
Hauling Service, supra.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(X )
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully issued a letter
of reprimand to Ronald Carter, I shall recommend that it
be required to revoke and expunge from its records all cop-
ies of said reprimand and to take no action against Ronald
Carter based in whole or in part upon that reprimand.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By issuing a letter of reprimand to Ronald W. Carter,
and by impliedly threatening his job security because of his
participation in protected grievance meetings, Respondent
has interfered with, coerced, and restrained its employees
in the exercise of rights guaranteed by Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Sec-
tion 8(aX)(1) and Section 2(6) and (7) of the Act.
Upon the basis of the entire record, the findings of fact,
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The Respondent, Ryder Truck Lines, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Issuing letters of reprimand to, or threatening to dis-
charge or discipline, employees because of their protected
participation in grievance meetings.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Revoke and expunge from its records the letter of
reprimand issued to Ronald W. Carter on December 13,
1977, and take no action against him based in whole or in
part upon that reprimand.
(b) Post at its Cincinnati, Ohio, office and terminal cop-
ies of the attached notice marked "Appendix."6 Copies of
said notice on forms provided by the Regional Director for
Region 9, after being duly signed by the Respondent's au-
thorized representative, shall be posted by it immediately
upon receipt thereof, anC be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
5In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
6 In the event that 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 Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
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 parties had the opportunity to
present their evidence the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice telling our employees what we have been
ordered to do and not to do in the future.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from the exercise of any such activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT issue letters of reprimand to our em-
ployees, or threaten them with discharge or discipline,
because of their protected participation in grievance
meetings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them in the Act.
WE WILL revoke and expunge from our records all
copies of the letter of reprimand issued to Ronald W.
Carter on December 13, 1977, and WE WILL take no
action against Ronald W. Carter based in whole or in
part upon that reprimand.
RYDER TRUCK LINES, INC.
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