N.L.R.B. v. Wilson Freight Co.
| Decision Date | 30 August 1979 |
| Docket Number | No. 78-1178,78-1178 |
| Citation | 102 L.R.R.M. 2269,604 F.2d 712 |
| Parties | 102 L.R.R.M. (BNA) 2269, 87 Lab.Cas. P 11,571 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WILSON FREIGHT COMPANY, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Andrew F. Tranovich, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Elinor Hadley Stillman and Lee Ann Huntington, Attys., Washington, D. C., were on brief, for petitioner.
Paul J. Kingston, Boston, Mass., with whom Paul V. Mulkern, Jr., and Kingston & Garrett, Boston, Mass., were on brief, for respondent.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.
The National Labor Relations Board has applied for enforcement of its order against the Wilson Freight Company. The Board, summarily affirming the decision of its administrative law judge (ALJ), 1 ruled that the Company had violated §§ 8(a)(1), (3), and (4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (3), and (4), 2 by discharging an employee, Paul Smith, for concerted activity protected by the Act, and ordered, Inter alia, that Smith be reinstated. 234 NLRB No. 132 (Feb. 10, 1978). The Company opposes enforcement on the ground that Smith was discharged for a legitimate business reason.
The Company is a motor freight carrier, one of whose terminals is in Chelmsford, Massachusetts. Drivers there are represented by Local 25 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The discharged employee, Smith, was the shop steward at the Chelmsford terminal. During the several years prior to his discharge on September 3, 1976, Smith registered numerous complaints against his employer with governmental officials and agencies. The Board ruled these complaints were "protected" under the National Labor Relations Act and that they constituted the "real" reason for Smith's discharge. The Company's contention that Smith was discharged for interfering with an internal bidding procedure was treated as a mere pretext. In particular, the Board held that a warning letter, dated September 2, 1976, and mailed to Smith just before he was discharged, demonstrated the Company's anti-union animus. In the letter the Company had said Smith's complaints interfered with its business and were in excess of his authority as shop steward, and that further interference or conduct in excess of authority would result in his instant dismissal.
A critical issue, then, is whether Smith's incessant complaints, made outside the bargaining framework, went so far beyond the functions of a shop steward, as defined in Article 41 of the collective bargaining agreement between the Company and Local 25, 3 as to justify the September 2 warning letter. The ALJ's findings say little about the scope and actual character of Smith's complaints. The ALJ seems to have regarded the complaints as "protected" whether or not Smith was acting beyond the contract limitations imposed on shop stewards. As we see the issue differently, we set out in detail the facts concerning Smith's complaint activity, relying in large part on exhibits consisting of Smith's letters and the responses he received.
Smith began complaining to outside officials in 1974, a short time after the Company had taken over a new terminal in Chelmsford, Massachusetts. The terminal manager was one Rudolph, and after a brief period of good feelings, relations between Smith and Rudolph deteriorated.
In September of 1974, signing himself as "shop steward," Smith dispatched a letter to Massachusetts Governor Sargent, complaining of inadequate heat within the terminal in purported violation of a state regulation, Industrial Bulletin No. 1, § 113. Smith wrote this letter shortly after components of the Teamsters Union and a group of Massachusetts truck owners had negotiated a state-wide agreement, known as the Industry Heat Agreement, indicating how the regulation would be applied to their circumstances. State officials approved this agreement, and it was signed on behalf of Smith's union, Local 25, by Business Agent Fred Singelais (who was also chairman of the union negotiating group). The agreement provided that there should be warm-up rooms in terminals and that employees should receive periodic heat breaks. In his letter to Governor Sargent, Smith did not accuse the Company of failing to comply with the Industry Heat Agreement, the existence of which he acknowledged, but rather complained that the agreement was illegal and improper. Smith felt that the state regulation required the provision of heat throughout the terminal, and that his union had been wrong to agree otherwise.
Copies of this letter were sent to Massachusetts Attorney General Quinn and the Massachusetts Safety Commissioner.
The Governor's office responded to Smith on October 2, 1974 that the warm-up room plan negotiated between the Teamsters Union and the trucking company owners was considered to be
This set off a flurry of letters between representatives of the trucking industry's Employers' Group; the Director of the Massachusetts Department of Labor and Industries; and Mr. Singelais of Local 25. The question was raised why Smith had not filed a grievance with Local 25 as provided under the Industry Heat Agreement. 4 In a second letter to Governor Dukakis, dated April 24, 1975, Smith assured the Governor that "the procedure of making a formal complaint to the Union has already been done," and that he, Smith, had taken the matter up with "Pat Lee, our business agent." However, in a letter on Local 25's stationery, dated July 18, 1975, Business Agent Singelais wrote the owners' group:
No further correspondence relative to the heat matter appears in the record. 5 We observe that the foregoing complaint to Governor Dukakis and the alleged demeaning of Mr. Grady were actions later criticized by the Company in its September 2, 1976 letter to Smith. In finding that letter indicative of anti-union animus, the ALJ did not mention that Smith's heat complaints had been directed against policies and procedures spelled out in the Industry Heat Agreement to which Local 25, Smith's union, was a signatory. Nor did the ALJ mention the complete absence of evidence that Smith's conduct was endorsed by Local 25. In crediting Smith's testimony throughout the proceeding, moreover, the ALJ did not comment upon the disparity between Smith's representations in his letter to the Governor that he had complained formally to the Union and had taken up the heat complaint with Business Agent Lee, and the flat contradiction of these representations in Business Agent Singelais' letter. 6
Smith followed the heat complaint with a plethora of other complaints delivered over Smith's signature as "shop steward," not individually. There is no evidence that any of these complaints were made with the official approval of Local 25 or its officers. Rather they seem to have been instigated by Smith with, according to his own testimony which the ALJ credited, support from one or more persons at the Chelmsford terminal.
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