N.L.R.B. v. CWI of Maryland, Inc.
| Decision Date | 02 October 1997 |
| Docket Number | No. 97-1020,97-1020 |
| Citation | 127 F.3d 319 |
| Parties | 156 L.R.R.M. (BNA) 2545, 134 Lab.Cas. P 10,073 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CWI OF MARYLAND, INCORPORATED, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: William Maurice Bernstein, National Labor Relations Board, Washington, DC, for Petitioner. Joel Ibert Keiler, Reston, Virginia, for Respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, National Labor Relations Board, Washington, DC, for Petitioner.
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Application for enforcement granted in part, denied in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge MOTZ joined. Judge NIEMEYER wrote a separate opinion, concurring in part and dissenting in part.
The National Labor Relations Board petitions for enforcement of its order entered against CWI of Maryland, Inc. (CWI), a trucking company. The Board's order affirmed the decision of an administrative law judge, who found that CWI had committed numerous and severe unfair labor practices during a unionization drive by the Drivers, Chauffeurs, Warehousemen and Helpers, Local 639, affiliated with the International Brotherhood of Teamsters, AFL-CIO (the Union). The ALJ concluded that CWI had violated § 8(a)(1)-(5) of the National Labor Relations Act (the Act), 29 U.S.C. § 158(a)(1)-(5), by surveilling, interrogating, and threatening its workers; firing one driver based on a discriminatory motive; constructively discharging the entire bargaining unit based on a discriminatory motive; and refusing to bargain. To remedy these violations, the Board ordered CWI to cease and desist in its illegal practices, to recognize and bargain with the Union, to offer reinstatement to terminated drivers, and to restore the working conditions that existed prior to the unfair labor practices. After considering the petition, we grant enforcement of most of the Board's order and remand for further proceedings on compliance. However, because we conclude that CWI did not violate § 8(a)(3) when it fired driver Richard Pace, we deny enforcement of the portion of the Board's order that requires the company to reinstate Pace.
CWI hauls trash by truck from Washington, D.C., to landfills in Virginia. It currently operates out of facilities in Beaver Heights, Maryland, and King William County, Virginia. The company does most of its trucking under a contract with Browning Ferris Industries (BFI). CWI drivers haul trash from BFI's Washington location to a landfill in King and Queen County, Virginia. The distance from the BFI site to the landfill is about 140 miles.
Prior to August 1994 most CWI drivers would make two runs from BFI's pickup site to the landfill each day. The drivers would get their trucks at the Beaver Heights location, drive to the BFI site and pick up a load of refuse, deliver the refuse to the landfill, and then return to BFI for another load. The two runs required about 585 miles of driving over 12 to 16 hours. The drivers earned $100 per run and worked three to six days a week. In the spring of 1994 some drivers mentioned to CWI's president, Wilton (Tony) Lash, that they were driving more hours than were permitted under Department of Transportation (DOT) regulations. Lash responded by asking the American Trucking Association (ATA) to review CWI's operations. The ATA review, conducted in July 1994, found that the hours required to drive the distance covered by two round trips exceeded the limits set by DOT regulations, which limited driving time to 10 hours per day, with additional limits of 15 consecutive hours on duty and 70 hours on duty in eight consecutive days. After the ATA issued its report, Lash met with the drivers and announced that their runs would be cut to one per day. However, Lash also said he would look for a drop site in Virginia that would allow the drivers to make two runs per day from BFI's Washington location to the drop site. Under this plan other drivers would be hired in Virginia to drive from the drop site to the landfill. Lash asked that the drivers "hang with [him]" until something could be worked out. J.A. 606. In the meantime, drivers made only one run per day, five or six days a week, and continued to receive $100 per run.
On September 26, 1994, about six weeks after the runs were reduced, three of the drivers met with James Woodward, an agent for the Union. These drivers decided to solicit authorization cards, and by mid-October they had collected cards from 31 of the 44 drivers at CWI. On November 9 Woodward notified Lash by telephone that he represented a majority of the drivers. Woodward and Lash arranged a meeting, but CWI's counsel, Joel I. Keiler, came to the meeting instead of Lash. Woodward claims he told Keiler that the Union represented a majority, and Keiler allegedly replied,"We'll never recognize the union." J.A. 60. Keiler's account differs substantially: according to Keiler, Woodward claimed that he could easily organize CWI and that he mainly wanted to secure pension benefits and union health insurance for the drivers. 1
Tarik Muhammad, one of the drivers who signed an authorization card, claimed he was confronted by Lash in early November. According to Muhammad, Lash asked him who was "causing the stink in the company." J.A. 279. When Muhammad replied that he did not know anything about a "stink," Lash told Muhammad that his name had come up as one of the drivers "who was causing a stink." Id. Muhammad asked Lash what "causing a stink" meant, and Lash defined the phrase as "guys going behind [my] back to join the Union." J.A. 280; see J.A. 988. Lash added that he had talked to CWI's operations manager, Dwayne (Dino) Sawyer, and had been surprised to hear Muhammad's name mentioned as one of those involved. Lash then began to recount all of the ways he had tried to help the drivers in the past, including a gift he had given to Muhammad when he was sick and unable to work. Muhammad told Lash that he "wasn't about the business of raising any type of stink with anybody" but also said he did not see why signing a union card "has anything to do with a stink." J.A. 280-81; see J.A. 988. Lash told Muhammad that the drivers who wanted a union "[were not] going to force him to do anything he didn't want to do." J.A. 279.
Lash called a meeting of his drivers on November 10. Lash began by saying, "There's a lot of stink going on, and there's a devil amongst us." J.A. 155, 609. Lash did not mention the Union. He also mentioned that he was still looking for a drop site that would permit drivers to make two runs in a day.
On November 18 CWI terminated driver Richard Pace. Pace, who had worked for the company for about three months, had eleven unexcused absences and had received a verbal warning for speeding. The triggering event for Pace's termination occurred on Saturday, November 12, when he reported to work. Pace says he left the reporting site after being told there were no more runs to be made that day. However, a memo prepared by Jerome Freeland, CWI's loading operator, reported that Pace had left prematurely. Pace also claims he was told he would not be needed until Tuesday, November 15. When Pace arrived for work on Tuesday, operations manager Sawyer gave Pace a three-day suspension for failing to report for work on Saturday and Sunday. Pace protested that he had been in on Saturday, and Sawyer, noting CWI's need for drivers, changed Pace's suspension to a written warning. Pace worked the next three days. However, on November 18 Sawyer told Pace that he was being terminated because he "didn't make [his] 90-day probation." J.A. 162. Pace responded that he had not been advised of any probationary period. Pace also claimed he had been hired on July 30 rather than August 18 and therefore his probationary period would have ended in October. After first disputing Pace's assertion about the July 30 starting date, Sawyer then claimed that the probationary period was 90 working days. After further argument Sawyer allegedly told Pace, J.A. 164.
A Union meeting was held on November 19 at the Union's hall in Washington, D.C., a substantial distance from CWI's headquarters in Beaver Heights. Company employees at the meeting noticed Tony Lash's son, Duke Lash, and several other persons standing beside a car across from the hall. When Woodward (the Union agent) began to walk toward the car, Duke Lash and the others quickly got into the car and sped off. Later in the afternoon, Tony Lash himself drove by the Union hall, tooted his horn, and waved to some of the employees. Lash later claimed that he passed by the hall because it was on his way back from lunch.
The Union filed its representation petition on December 15. On December 22 Tony Lash called a meeting of his drivers and said they had "forced his hand." J.A. 125. He told them he had obtained a drop site in King William County, Virginia. However, in order to haul to this new drop site, which was approximately 100 miles from the BFI pickup site, drivers would be required to report to work at the new site instead of the facility in Beaver Heights. Since most of the drivers lived relatively close to the Beaver Heights facility, the (unpaid) commute to the King William County site would be about 90 to 125 miles. Lash said he was making the change to save on costs, and he gave the drivers six days to decide if they wanted to remain with the company. That same day (December 22) Keiler sent Woodward a letter concerning the change in the reporting site.
Around this time Sawyer denied extra work to Joe Nelson, one of the three drivers who first met with Woodward to discuss unionization. Nelson had requested extra hours; his request was initially...
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