DC International, Inc. v. NLRB

• Decision Date: 17 November 1967
• Docket Number: No. 18766.,18766.
• Citation: 385 F.2d 215
• Parties: DC INTERNATIONAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

385 F.2d 215 (1967)

DC INTERNATIONAL, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18766.

United States Court of Appeals Eighth Circuit.

November 17, 1967.

W. C. Dannevik, Jr., Kansas City, Mo., for petitioner; Donald J. Quinn, Kansas City, Mo., and Arnold L. Burke, of Axelrod, Goodman & Steiner, Chicago, Ill., were with him on the brief.

John E. Nevins, Atty., N. L. R. B., Washington, D.C., for respondent; Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, N. L. R. B., Marcel Mallet-Prevost, Asst. Gen. Counsel, and Elliott Moore, Atty., N. L. R. B., were with him on the brief.

Before VOGEL, Chief Judge, and GIBSON and LAY, Circuit Judges.

VOGEL, Chief Judge.

DC International, Inc., the company-employer, has petitioned this court to review and set aside an order of the National Labor Relations Board issued against petitioner on February 1, 1967, following the usual proceedings under § 10 of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C.A. § 151 et seq.). The Board's decision and order are reported at 162 N.L.R.B. No. 129. The Board, in its answer to the petition, has requested enforcement of its order. Jurisdiction is noted.

In its decision and order, the Board found that International had violated § 8 (a) (1) of the Act by promising employee John A. Stanley benefits if he refrained from filing and processing grievances and threatened him with discharge and other reprisals for filing and processing grievances. Additionally, the Board also found that International discharged Stanley for his frequent and persistent filing of grievances and therefore further violated § 8(a) (1) of the Act. The Board's order directed that International cease and desist from actions repugnant to the Act and, inter alia, the reinstatement of Stanley and making him whole for any loss of pay he may have suffered by reason of the discharge, together with interest on such sum, the posting of appropriate notices, etc. We deny enforcement of the Board's order insofar as it is based on the discharge of employee Stanley.

The only controversy in this case surrounds the discharge of employee Stanley, the petitioner having failed to except to the findings as to offered benefits and threats. The case against the petitioner rests entirely upon the unsupported testimony of Stanley and inferences that may be drawn therefrom. Other employees of the petitioner denied the truth of Stanley's assertions that he was offered benefits if he refrained from filing grievances against the company and was threatened with discharge if he continued to do so. The following, then, is a resume of Stanley's testimony out of which the Board finds that petitioner discharged Stanley in violation of § 8(a) (1) of the Act.

Stanley was hired by International as a dock worker at its Kansas City terminal on May 7, 1965, and thirty days thereafter he became a member of the union. He was discharged on March 11, 1966. During that period of approximately ten months he filed and collected on four grievances, netting him a total of $40.74. The filing of the grievances relates to the alleged wrongful discharge in the following manner. On October 25, 1965, and November 4, 1965, Stanley filed grievances through the union claiming contract infractions by International in assigning overtime contrary to the seniority list. Both claims were paid to Stanley by a single check in the amount of $26.96 dated November 19, 1965. Stanley claims, however, that within a few weeks following the filing of the grievances Paul Leeman, a dock foreman for International, spoke to him, Stanley, with reference to the grievances and asked him if he did not want to do more than just work on the dock. When Stanley replied that he would prefer to be a tractor operator, Leeman said, "There you have a reason for not going around filing these grievances," and that Stanley should not cause Leeman and the company trouble if he wanted to get ahead.

On December 23, 1965, Stanley filed grievances alleging that dock foreman Austin Richardson and terminal manager Bill Murphy were handling freight in violation of the contract. On January 11, 1965, the Richardson claim was acted on favorably by the grievance committee and on January 13, 1966, Stanley received a check for $9.18 thereon. Stanley also recovered on the Murphy grievance charge, receiving a check in the amount of $4.60 thereon.

According to Stanley, shortly after he filed the grievances Richardson called him to the center of the dock and said, "You filed a grievance on me." Richardson is also reported to have said that if Stanley collected on the grievance he would fire him and that he was going to start by giving him a warning letter for leaving the dock. Stanley had earlier left the dock to retrieve his fountain pen which another employee had thrown on the roof of a trailer. No warning letter was issued at this time.

Stanley testified that shortly after the Murphy grievance was filed, Phillip Bock, a terminal operations manager from Chicago on special assignment to the Kansas City terminal, called Stanley to his office. According to Stanley, Bock told him that the grievance "put an inconvenience on" Murphy and made the latter "look bad" in Denver, the home office. Bock is supposed to have told Stanley to do them a favor and drop the grievance so Murphy would not get into trouble. When Stanley indicated resistance to withdrawing the grievance, Bock stated that the company had ways of getting rid of men over the union's head and that if the grievance were not dropped Murphy would probably fire Stanley over it. The grievance was not dropped and was adjusted and paid in Stanley's favor.

According to Stanley, on December 29, 1965, dock superintendent Bryan Wormell approached Stanley, who was putting a bandage on one of his feet after a minor accident. Wormell, according to Stanley, told him that he should start looking for another job because he was "accident prone" and that he was a "trouble maker" and was "trying to cause trouble all the time". Wormell is supposed to have added, "You had better start looking for another job."

All of the foregoing findings are based on the unsupported testimony of Stanley, denied by all other witnesses who testified.

On February 1, 1966, and February 9, 1966, Stanley received warning letters regarding his calling in late when absent or tardy. These late calls violated the company's rule that notice should be given to the company by a telephone call at least one hour before each shift started. The warning letter of February 1, 1966, was addressed to John A. Stanley and read as follows:

"Dear John:

"On January 31st your wife called at ten minutes after your starting time and advised you would not be to work due to a cold.

"The last time you were absent from work and did not notify your foreman until after your starting time, you were advised verbally that in all cases you are to notify your foreman at least one hour before your starting time in order for us to obtain someone to work your shift.

"As this is the second time this has happened, I have no alternative but to issue you this warning letter per the contract now in effect."

The letter of February 9, 1966, also addressed to Stanley, is as follows:

"Dear John:

"On February 4th you reported for work at 7:16 PM while your starting time is actually 3:30 PM — or, in other words, approximately four hours after your starting time.

"This is your second warning letter in regard to not calling your dock foreman when you are going to be late or absent from work.

"Your continuation of such negligence will result in further disciplinary action being taken up to and including your dismissal."

On March 11, 1966, the employer sent the following letter to Stanley:

"Dear John:

"On February 1st by certified mail you were advised with a warning letter that you were to notify your foreman at least one hour before your work shift, if you were not going to be able to be at work.

"Again on February 9th you were issued a warning letter advising that you were to notify your foreman at least one hour before your work shift.

"On March 10th at 4:00 P.M. (30 minutes after your starting time) you called the dispatcher Joe McClanahan and advised him that you would be in later. When he asked you how much later you said in an hour or hour and a half. At 5:00 P.M. an hour and a half after your starting time you did not show for work, therefore, I have no alternative but to dismiss you from the employ of DC Trucking Company, Inc."

Stanley does not dispute the facts as set forth in the letters and upon which discharge was allegedly based. His excuses as given to the dock superintendent were that his wife was ill, that he had no telephone and that this made it difficult for him to comply with the company rules. The record indicates that Stanley's landlady had a telephone and that there was one available across the street. He claims to have been assured by dock superintendent Wormell that the company understood the problems and that he, Wormell, didn't think it would go any further.

On March 22, 1966, the local grievance committee met and passed on a number of grievances, including that of Stanley, who claimed a violation of Article 44 of the agreement dealing with discharge or suspension, which states in pertinent part:

"ARTICLE 44.

"Discharge or Suspension

"The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one warning notice of the complaint against such employee to the employee, in writing, and a copy of the same to the Local Union and job steward affected, * *.

"Discharge must be by proper written notice to the employee and the Local Union affected. Any employee may request an investigation as to his discharge or suspension. Should such investigation prove that an injustice has been done an employee, he shall be

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