N.L.R.B. v. Ryder/P.I.E. Nationwide, Inc., 86-4260
| Decision Date | 20 February 1987 |
| Docket Number | No. 86-4260,86-4260 |
| Citation | 810 F.2d 502 |
| Parties | 124 L.R.R.M. (BNA) 3024, 106 Lab.Cas. P 12,250 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. RYDER/P.I.E. NATIONWIDE, INC., Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Judith Dowd, Elliott Moore, Deputy Assoc. Gen. Counsel, N.L.R.B., Washington, D.C., Paul Spielberg, Atty., Joseph G. Norton, Act. Dir., New Orleans, for petitioner.
John Paul Jones, Clearwater, Fla., for respondent.
Petition for Enforcement of an Order of the National Labor Relations Board.
Before GARWOOD, JOLLY and HILL, Circuit Judges.
Ryder/P.I.E. Nationwide, Inc. ("Ryder"), petitions this court to review and set aside an order of the National Labor Relations Board ("Board") finding that Ryder had violated sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("the Act"), 29 U.S.C. Secs. 158(a)(1) and 158(a)(3) 1 by discharging Clarence Eugene Pate ("Pate") for the protected activity of filing grievances. The Board's order also found Ryder in violation of section 8(a)(1) of the Act for remarks made to an employee by one of its supervisors. Ryder does not challenge this part of the Board's order. The Board cross-petitions for enforcement of its order.
Two issues are presented by this petition. The first is whether the Board acted within its discretion by declining to defer to an arbitration award upholding the discharge of the employee, Pate. The second is whether substantial evidence on the record as a whole supports the Board's finding (a) that Pate's grievance filing (a protected activity) was a motivating factor in his discharge, and (b) that Ryder failed to prove that it would have discharged him even in the absence of his protected activity. Although we find that the Board did not abuse its discretion by refusing to defer to the arbitration award, we conclude that substantial evidence does not support the Board's conclusion that Pate would not have been discharged in the absence of his protected activity. We therefore deny enforcement of that part of the Board's order requiring Ryder to reinstate Pate with back pay. We do, however, grant enforcement to that part of the Board's order finding Ryder in violation of section 8(a)(1) of the Act for remarks made by one of its supervisors, as Ryder does not challenge that finding.
Clarence Pate began working for Ryder in March 1977 as an over-the-road driver at its Birmingham, Alabama, terminal. In January 1983, Pate and about eight to ten other drivers were transferred to the company's New Orleans terminal. At the time of the transfer, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 270 ("the Union") negotiated an agreement with the company providing that the relocated drivers would be assigned to transport all freight shipments from New Orleans westward. Under the agreement, the relocated drivers could invoke the contractual grievance if the company gave such assignments ("run around trips") to drivers from other terminals.
During the period relevant to this case, Jim Christianson was an operations supervisor and Julio Magana a dock supervisor at the New Orleans terminal. Tom Davis became the terminal manager on January 27, 1984.
In late September 1983, the company apparently began to breach the run-around-trip agreement with respect to Pate. Pate complained to Union steward Billy Cullen, and Cullen spoke to company officials several times about the improper trip assignments. The company continued to bypass Pate in assigning westward runs, and he began filing grievances. Pate initiated about eight to ten grievances between October 3, 1983, and March 1984. At least six of them concerned company violations of the run-around trip agreement. All six were found to be valid and Pate collected approximately $763 in compensatory pay.
In addition to filing grievances for Pate, Cullen filed about eighteen of his own between January and March 1984. Most of Cullen's personal grievances concerned claims for no more than a few hours pay for call-in or terminal delay time. Only two alleged a claim similar to Pate's for improper company assignment of an entire freight run. Cullen apparently withdrew one of these two trip-assignment grievances prior to hearing. The remainder of his personal grievances alleged either harassment by supervisors or unsafe working conditions.
Cullen also filed about four grievances on behalf of all New Orleans drivers, protesting a new company policy limiting to one-half hour the amount of time a driver could claim for dropping loaded trailers and hooking up empty trailers at the terminals ("drop and hook time"). The company enforced its new policy by deducting from drivers' time cards any amounts claimed in excess of the time allotted, unless the driver gave a satisfactory explanation for the additional time spent. Dock supervisor Magana routinely decided whether to accept drivers' explanations for additional time claimed.
Sometime in early 1984, Cullen told Supervisor Christianson that his truck needed certain repairs and that it was unsafe to operate without the repairs being made. Christianson insisted that the truck was safe to drive and directed Cullen to take it out. During the discussion that followed, Christianson told Cullen that if he was "as conscientious about his job as he [was] about filing grievances" there wouldn't be any problems at the terminal.
Sometime in late March, Cullen was given the opportunity to transfer to the Nashville terminal, and he decided to do so. When Cullen told Supervisor Magana that he was going to transfer, Magana responded that it was the best thing Cullen could do, because if he stayed in New Orleans he "wouldn't have a job."
On April 1, 1984, at 11:55 p.m., Pate was dispatched on a regular run to the company's Thibodaux terminal and back. The trip from New Orleans usually takes from about one hour and forty-five minutes to two hours. At about 1 a.m., George Lockett, the night dockman at Thibodaux, called the New Orleans terminal and ascertained that Pate was the driver of the truck for Thibodaux and had left the terminal about midnight. At about 2 a.m., Lockett got the terminal manager, Catton, out of bed to report that Pate had not yet arrived. Catton told Lockett to call again when Pate came in. Pate arrived at the Thibodaux terminal at 3:40 a.m.
After Pate's arrival, Lockett called Catton who instructed him, as was customary in such cases, to make a copy of Pate's trip card. Lockett took Pate's trip card to duplicate it and returned the original to Pate. Lockett noted that the arrival time block on the trip card was blank and that Pate's 3:40 a.m. arrival time appeared in the departure time block. Lockett then left the copy of the trip card on Catton's desk and went out with Pate to help him drop the loaded trailer and hook up two empty trailers for the return trip. After they returned to the terminal, Pate sat down to do his paper work, and Lockett saw Pate write in "2:00 a.m." as his arrival time on his trip card. Pate left the Thibodaux terminal at 4:16 a.m. for the return trip to New Orleans.
Later in the morning, Catton called New Orleans terminal manager Davis to complain about Pate's late arrival. That same day Catton prepared a written statement of the facts concerning Pate's late arrival and employee Lockett signed it. Catton sent this memo, a copy of Pate's trip card, and copies of the sign-in and sign-out sheets to Davis a few days after the incident.
After Pate returned to New Orleans, he submitted his trip card to the company for payment for the Thibodaux run. Pate claimed an hour and one-half drop and hook time at the Thibodaux terminal. Thereafter, Pate continued to drive freight as usual.
About April 6 or 7, Supervisor Magana heard that company officials suspected Pate of some misconduct. On the afternoon of April 8 when Magana was driving to work, he observed Pate entering his truck which was parked outside a convenience store. Magana checked records when he arrived at the terminal and found that Pate had been sent to Lafayette. Magana later obtained a copy of Pate's log sheet and found that Pate had claimed he was driving at the time Magana observed him at the convenience store. On April 12, Magana issued a warning letter to Pate for falsifying his log sheets.
On April 25, Davis summoned Pate to his office and gave him a termination notice which stated, in pertinent part:
On Monday, April 2, 1984 you claimed and were paid for 1.6 hours [one hour and 36 minutes] drop and hook time at the Thibodaux, LA Terminal.... In fact you were only delayed .5 hours [one-half hour]. This is to advise you that you are hereby discharged for dishonesty under article 45 section 1 of the current National Master Freight Agreement....
The difference between the pay claim Pate submitted for April 2, and the amount which the company calculated he was actually owed was $14.28.
About the time of Pate's discharge, employee Kenneth Jordan asked Supervisor Magana what had happened to Pate. Magana replied that "his grievances got him," and then he laughed.
Pate filed a grievance concerning his discharge, which the company rejected at the initial stage. On May 21, Pate's grievance was presented to the Southern Multi-State Grievance committee, which included three management and three Union representatives.
At this arbitration 2 hearing, the Union initially contended that Pate's discharge was untimely. The Union's business agent, Eugene Brown, pointed out that the company did not discharge Pate until twenty-three days after it had learned about his conduct on April 2. The panel rejected the Union's contention and proceeded to hear the grievance on the merits. The balance of the hearing was devoted to a presentation of the facts concerning Pate's April 2 Thibodaux run. The company introduced documentary evidence showing the discrepancies in Pate's...
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