N.L.R.B. v. T & J Container Systems, Inc., 95-1661
| Citation | 86 F.3d 1146 |
| Decision Date | 04 March 1996 |
| Docket Number | No. 95-1661,95-1661 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. T & J CONTAINER SYSTEMS INC., d/b/a T & J Trucking Company, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
On Application for Enforcement of an Order of the National Labor Relations Board.
Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Frederick C. havard, Supervisory Attorney, National Labor Relations Board on brief for petitioner.
Thomas J. McAndrew, Lauren E. Jones, Robert S. Thurston and Jones Associates on brief for respondent.
NLRB
ORDER ENFORCED.
Before BOUDIN, Circuit Judge, and COFFIN and ROSENN, * Senior Circuit Judges.
Before the court is an Application for Enforcement of an Order of the National Labor Relations Board ("NLRB" or "Board"). The Rhode Island Laborers' District Council and its affiliated Local 1322, Laborers' International Union of North America, AFL-CIO (collectively the "Union") filed unfair labor practice charges against T & J Container Systems ("T & J" or "the Company") with the NLRB, alleging that T & J violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 158(a)(1) and (3). An administrative law judge ("ALJ") found that T & J committed unfair labor practices by opposing, through intimidation, T & J's employees' efforts to unionize, and by discharging an employee in retaliation for his union activity. The ALJ's order recommended that T & J cease and desist all unfair labor practices, reinstate the employee with back pay, and post appropriate notices. In addition, the ALJ recommended that a bargaining order issue, mandating that T & J, upon request, bargain in good faith with the Union as the exclusive bargaining agent of its employees.
A three member panel of the Board adopted the ALJ's recommended Order and directed that T & J take the action set forth in the Order. The Board petitioned this court for the full enforcement of the Order. See 29 U.S.C. § 160(e). The Board properly exercised jurisdiction pursuant to Section 10(a) of the NLRA, 29 U.S.C. §§ 151 & 160(a). This court has jurisdiction pursuant to Section 10(e) of the Act, 29 U.S.C. § 160(e). We enforce the Board's order.
T & J Container Systems, located in Johnston, Rhode Island, is in the business of collection and disposal of commercial trash. It employs in the aggregate approximately twenty truck drivers, equipment operators and mechanics.
Robert K. Dorgan, employed by T & J as a truck driver, approached the Union in early August 1992 to obtain information on how to organize T & J's employees. 1 Union officials gave Dorgan authorization cards for T & J's employees to sign. Several employees attended the first of three meetings to discuss unionization on August 11, 1992. By September 4, 11 out of 20 members of the bargaining unit had signed authorization cards. 2
The Union claims that T & J interfered with the employees' attempts to organize. It alleges that T & J, through its president and co-owner, Antonio Pedroso, intimidated several employees by interrogating them about union activity at the company. The Union further alleges that T & J fired Dorgan in retaliation for his attempts to unionize the company. T & J replies that it discharged Dorgan for his reckless driving behavior.
Joseph Cruso worked as a welder at T & J from November 1991 until his termination in October 1992. 3 Cruso testified that, prior to his termination, Pedroso approached him with questions about union activity at T & J. Pedroso allegedly asked Cruso if he wanted to be a "team player" and informed him that he would "take care of [him] later in time when this union thing was all over." Cruso further testified that Pedroso asked him the names of all employees that attended union meetings, and that Pedroso wrote down all the names. Pedroso testified that Cruso volunteered the union information to him. He denied writing down the names of the union activists.
Eric Kelling, a mechanic at T & J, testified that Pedroso approached him with inquiries about union activity. Kelling claimed that Pedroso told him that unionization would kill his business and "then nobody would have a job." Pedroso asserted that Kelling approached him with union information. He denied questioning Kelling about the unionization attempts.
Finally, William Melvin, a truck driver with T & J, testified that Pedroso questioned him about union organizational activity at the company. Specifically, Melvin stated that Pedroso asked him if Dorgan was present at the union meetings. Pedroso denied asking Melvin about Dorgan's presence at the meetings.
Dorgan, Sr., the general manager of T & J, had charge of the hiring and dismissal activity at the company. He hired his son, Dorgan, to work as a general laborer at T & J in March 1991. One month later, the company moved Dorgan to the position of driver. The record shows that Dorgan was involved in several traffic accidents during his tenure at T & J. The first accident occurred in February 1992, and resulted in fatal injuries to the driver of the other vehicle. Dorgan testified, and T & J did not contest, that the company did not discipline him for the incident.
In April 1992, Dorgan was involved in another accident caused by his failure to comply with a yield sign. He claimed that the sign was obscured by trees. The police cited Dorgan for this accident, and the case is currently pending. Dorgan testified that T & J did not discipline him for the incident.
Pedroso testified that, because of adverse conditions affecting T & J, he had taken a renewed interest in his company in the summer of 1992. He began to construct an office over one of the garages on the premises, and vowed to hold a tighter rein on his employees. Pedroso testified that Dorgan's reckless driving had been an issue at T & J for some time prior to his termination. Pedroso averred that in July 1992, his father-in-law, Mr. Sylvestry, noticed one of T & J's trucks driving erratically. Sylvestry allegedly informed John DiRaffael, Pedroso's partner, of the incident. Upon discovering that it was Dorgan at the wheel, DiRaffael allegedly informed Dorgan, Sr. that he would have to fire his son. 4 Dorgan, Sr. testified that he carried out the order and fired his son in July 1992.
Pedroso testified that he had second thoughts about firing Dorgan due to the emotional impact the dismissal had on Dorgan, Sr. Thus, he stated that he requested Dorgan, Sr. to inform Dorgan to come in and speak to him. Pedroso testified that he told Dorgan that he could have his job back out of Pedroso's respect for Dorgan's father. He further testified that he requested that Dorgan alter his "Tomahawk haircut" before returning to work. Pedroso stated that he informed Dorgan:
[F]rom now on you have to watch your speeding, watch the way you drive, be more careful, because this is going to be your last chance. After this, if you mess up again, that's going to be it. You're not going to work here any more.
According to Pedroso, Dorgan returned to work that Monday, with a haircut, and the understanding that he was on "final notice." Thus, Pedroso alleged that Dorgan was aware that if he drove recklessly again he would lose his job.
Dorgan did not contest that he was involved in several accidents while employed at T & J. He testified, however, that no one at T & J ever disciplined him regarding his driving. He denied that his father fired him in July 1992 after a reckless driving incident. Further, Dorgan denied that Pedroso informed him his job was in jeopardy:
Q. Is it not true that Mr. Pedroso called you in and said, that he was going to give you one last chance to retain your employment with the company?
A. I do not recall him saying anything about any last chance to retain employment.
* * *
Mr. Pedroso just mentioned to me about a phone call that someone had received that I apparently cut someone off.
Did he say anything else to you?
* * *
A. He said he did not like the way my hair looked and if I did not cut it I would no longer work there.
According to T & J, the incident that triggered Dorgan's termination occurred on August 28, 1992. Pedroso allegedly received a call from his sales manager, Ted Scanlan. Scanlan claimed that he observed Truck # 31, driven by Dorgan, travelling recklessly at a speed of about 70 mph. He allegedly called the office to determine which employee was assigned to truck # 31, and upon discovering it was Dorgan, informed Pedroso of the incident. Pedroso fired Dorgan that afternoon.
Dorgan admitted that he was driving Truck # 31 on August 28th. He denied, however, that he was driving recklessly. He testified that the speedometer on the truck was not working at that time, and that the truck was incapable of going over 45 mph. The parties have subsequently stipulated that truck # 31's maximum speed is 54 mph. The parties also agree that the area where Scanlan spotted Dorgan was marked as a 55 mph zone.
Dorgan testified that Pedroso called him into his office and fired him that afternoon. He denied, however, that Pedroso mentioned Dorgan's driving ability. He testified:
A. He asked me if I knew anything about union activity in the shop. I said I didn't know anything. He said he had an idea that I was running it. I still said I didn't know anything about it. Then he alluded to the idea that I had a bad attitude toward his general manager, being my father. I asked him what he meant by that. He didn't give me an answer to what he meant by that at all. He told me he was going to terminate me for my misconduct, my attitude toward his general manager and, with that, he told me to punch out and...
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