N.L.R.B. v. Advance Transp. Co.
| Decision Date | 22 May 1992 |
| Docket Number | No. 91-1061,91-1061 |
| Citation | 965 F.2d 186 |
| Parties | 140 L.R.R.M. (BNA) 2583, 121 Lab.Cas. P 10,195 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADVANCE TRANSPORTATION COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Judith A. Dowd, N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, N.L.R.B., Region 13, Chicago, Ill., Nancy B. Hunt (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for petitioner.
Leonard R. Kofkin, Fagel & Haber, Chicago, Ill. (argued), for respondent.
Before BAUER, Chief Judge, CUDAHY and EASTERBROOK, Circuit Judges.
Advance Transportation Company ("Advance" or "the company") is an interstate and local trucking company headquartered in Milwaukee, Wisconsin, and which maintains forty terminals. Local Union No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO ("the union"), is the recognized collective bargaining representative for approximately 200 of the company's Bedford Park terminal employees. Advance employs two types of drivers at its Bedford Park terminal: about eighty seniority or regular drivers, and up to fifteen replacement drivers who fill in for absent regular drivers. The regular drivers are paid more than replacement drivers, and enjoy all the benefits of union representation, such as accrual of bargaining unit seniority and availability of a grievance procedure. Replacement drivers can become regular drivers but, under an agreement with the union, only on a seniority basis. As part of the company's compulsory profit-sharing program, it withholds twelve percent from the wages of both regular and replacement drivers. The profit-sharing program is the centerpiece around which the facts of this case revolve.
In April 1985, Advance offered a voluntary profit-sharing plan to all of its union-represented employees. The plan allowed the company to deduct twelve percent from employees' wages, ten percent of which it retained and the remaining two percent it used to purchase stock in the company for the participating employees. Daniel Tuffs, a regular driver for Advance since February 1979, was one of the employees who opted not to participate in this voluntary plan. Ten months after the plan was initiated, in February 1986, Advance's regional manager Thomas Horvath called Tuffs into his office to tell him that Advance wanted one hundred percent participation in the plan. Tuffs continued to decline, explaining that he could not afford to participate. Horvath responded that if Tuffs did not participate in the plan, there would be a layoff of employees and Tuffs would be at fault.
In late 1987, during negotiations between the company and the union for a three-year contract, the company proposed that its profit-sharing plan become compulsory for a five-year period. The union responded it would agree to this proposal only if a majority of the employees approved it in a special referendum. The company agreed, and a referendum was called. A few days before the vote, the company held an informational meeting for the Bedford Park employees. After Glen Carroll, the terminal's operations manager, spoke in favor of the plan, Tuffs spoke up and called for a show of hands of those in favor of the plan. Only two employees indicated approval.
On the morning of December 18, 1987, the day of the referendum, Tuffs drafted, signed, and circulated a petition addressed to the union that indicated the objection of its signers to imposition of a compulsory profit-sharing plan by a simple majority vote. Including Tuffs, eighty-two employees signed the petition. Both Mike Zudycki, the terminal's office manager, and Horvath, the regional manager, saw Tuffs collecting signatures on the petition. In fact, Tuffs offered it to Zudycki, who responded that Tuffs should "get that thing away from me." The petition proved to be unnecessary, however, because the compulsory profit-sharing plan was defeated by a vote of 123 to 67.
The union and the company continued their contract negotiations with the company insisting that it needed a compulsory profit-sharing plan for its economic survival. It requested the union to join it in another referendum. The union declined, but countered that the employees might accept a compulsory plan if it were for only three years instead of five, and if it were accompanied by a pay increase greater than that required by the National Master Freight Agreement. The company agreed, and began campaigning among Advance employees for approval of the revised compulsory profit-sharing plan. The second referendum was held on February 25, 1988, and resulted in a majority of Advance employees approving the compulsory profit-sharing plan. Although the union refused to participate in this second referendum, it accepted the results and entered into the compulsory profit-sharing agreement for Advance employees as riders to the April 1, 1988, through March 31, 1991, collective bargaining agreements.
After the company and the union entered into the new contract, sixty Advance employees, Tuffs among them, filed grievances objecting to imposition of the compulsory profit-sharing plan. On April 27, 1988, the grievances were heard before a grievance board that included Advance's operations manager, Glen Carroll. Tuffs spoke out at the hearing, stating, "This is an example of what happens when you withhold monies from a person's check against their will and without their approval, and this thing will continue until people are given a voluntary choice on profit-sharing." Both the plan and employee dissatisfaction with it, however, continued. On April 14, 1988, two weeks after the plan was instituted, Advance hired Donovan Bauldry as a replacement driver. Bauldry added his voice to those unhappy with the compulsory plan, and would openly joke about it over the company radio.
The company distributed the first profit-sharing checks to employees on August 25. Tuffs's check was in the amount of $8.71. After receiving their checks, Tuffs and three others took them to Zudycki's office. Tuffs informed Zudycki of his pending, unresolved grievance. He insisted he was an unwilling participant in the program, and felt that if he accepted the check he would be indicating his approval of the plan. He therefore refused the check and placed it on Zudycki's desk. Zudycki responded that the check belonged to Tuffs, that the company wanted him to have it. Tuffs continued to refuse it and left Zudycki's office. The next day, Tuffs found the check in his box at the terminal where he received his messages and paychecks. Tuffs removed the check from his box and this time took it to Advance's regional manager, Thomas Horvath, reiterating what he said to Zudycki the day before. When Horvath told him the same thing Zudycki had, Tuffs left the check on Horvath's desk and walked out. Again, the next day, Tuffs found the check back in his box. This time he just left it there.
About two weeks after the profit-sharing checks were distributed, and Tuffs refused to accept his, dispatch manager Richard Blake called Bauldry into his office. Bauldry had accepted his profit-sharing check, but had not yet cashed it, awaiting a resolution of the grievance procedures. Blake informed Bauldry that he heard that Bauldry had made disparaging remarks about the company. Even though Bauldry denied having done so, Blake cautioned him to stop making jokes and comments to other drivers about the profit-sharing plan. The company, Blake explained, needed the money from the plan to survive. He continued that the company was aware that other drivers were opposed to the plan, it knew who they were, and it would "get" them all eventually, that is, they would lose their jobs driving for Advance. Blake warned Bauldry not to get involved with those drivers, not to associate with them. He reassured Bauldry that he was aware he was a hard worker, that he even refrained from taking coffee breaks, and that Bauldry would be in the next group of replacement drivers who would receive regular driver status. He then finished by reminding Bauldry not even to say hello to the dissident drivers.
On Thursday, September 29, Tuffs received a note from Blake informing him that he was suspended from work on Friday for failure to follow instructions, and that a letter would follow. The company and the union's agreement permits the company to discharge any employee who violates the same rule three times within a six month period. One of those rules is that an employee must follow instructions. Blake explained to Tuffs on Friday morning that, after making a C.O.D. delivery, Tuffs failed to obtain a certified check as instructed, accepting a company check instead. This was Tuffs's second warning for failure to follow instructions since August 12, Blake reminded Tuffs. Blake told Tuffs he was suspended for that day, but should report back for work on Monday. Tuffs left.
On Saturday, however, Tuffs received a telegram from Zudycki informing him that his employment with Advance was terminated, effective immediately, noting a letter would follow. The telegram was dated September 30, the day before. On Monday, October 3, Tuffs called Zudycki for an explanation before a letter arrived. Zudycki told him that he was fired because he took his coffee break before his first delivery, another violation of the rule that employees must follow instructions. The next day Tuffs received two letters from Blake. The first, dated September 30, was entitled "Second Warning Letter with One Day Suspension." This letter reminded Tuffs that he was issued a warning letter on August 12 for failure to follow instructions, and that on September 28 he again failed to follow instructions by stopping for a coffee break before making his first delivery of the day. The letter concluded that Tuffs was suspended from work for one day,...
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