NLRB v. Dorn's Transportation Company
| Decision Date | 09 January 1969 |
| Docket Number | Docket 32557.,No. 181,181 |
| Citation | 405 F.2d 706 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DORN'S TRANSPORTATION COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
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Eugene B. Granof, Atty., N. L. R. B. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Jonathan M. Marks, Atty., N. L. R. B. on the brief), for petitioner.
William Biederman, New York City (Harris J. Klein, New York City, on the brief), for respondent.
Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
This is a petition by the National Labor Relations Board for enforcement of its order of November 27, 1967, 168 NLRB No. 68 (1967) against respondent Dorn's Transportation Company, Inc., pursuant to Section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160 (e) (1964).
The Board found that the Company violated Section 8(a)(3) of the Act1 by discriminatorily discharging employees Richard Rogers and Alvin Weiss. The Board also found that the Company violated Section 8(a)(1) of the Act2 by coercively interrogating certain of its employees about their union activities and by withholding salary increases because of a union organizing campaign.
Respondent maintains that enforcement should be denied because the Board's findings are not supported by substantial evidence as required by the Act. Respondent further maintains that its discharge of Rogers and Weiss for refusal to work overtime, and its withholding of salary increases during the pendency of an election petition were justified, and that its interrogation of employees concerning union membership is protected by the Act. We find that there is substantial evidence in the record as to the discriminatory discharges and grant enforcement of that portion of the order. We deny enforcement as to the other claimed violations.
The facts were established at a hearing on May 17 and 18, 1967, before Trial Examiner John F. Funke.
Respondent Company is a trucking firm which maintains its home office and a freight terminal in Albany, New York, and which is a party to a master agreement with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America covering its drivers, helpers and dockmen. The Company also employs about fifty office and clerical employees at its Albany offices, none of whom were represented by a union when the alleged unfair labor practices herein occurred, during a campaign by the Teamsters to organize the office help.
Rogers and Weiss were office employees in the Company's Traffic Department, located in the terminal office building.
It had become a working arrangement for employees from the Traffic Department to "fill in" for terminal employee Leroy Rexford during his vacation. Since the Traffic Department employees were not sufficiently familiar with Rexford's duties and since Rexford worked from 3:00 to 11:00 p. m., performing Rexford's work meant overtime duty for two men from the Traffic Department. The assignments had always been done on a voluntary basis, with the exception that employee Weiss, who was known by management to be working nights at another trucking company, was not expected to and did not work overtime.
In the Spring of 1966 Assistant Traffic Manager Colabelli prepared a vacation schedule which indicated that Rexford would be on vacation from May 31 through June 7 and from October 24 through October 28, with the footnote:
It is assumed that Glen Handy, Harold Zeh, Dick Rogers and Larry Schneider will cover for Rexford while he is on vacation. We may have problems with Larry Schneider\'s schedule since Jane, his wife, is expecting sometime in May. We will cross this bridge when we get there.
Rexford's first vacation period passed without difficulty. However, on September 19, five weeks prior to Rexford's second vacation period, Rogers wrote and delivered the following note to Colabelli:
I am working every night for State Photo Corp. in Albany — therefore I will not be able to fill-in for Rex. The last night I will be available for "emergency" fill-ins is Tuesday, 9-20-66.
At about this time employee Schneider advised Colabelli that he would not work overtime, although he was willing to work Rexford's usual shift.
On October 4, 1966 Colabelli discussed the problem of finding replacements with his superior, Clifford Carter, General Traffic Manager. Subsequently, on Carter's suggestion, Colabelli wrote a note to Earl Butts, Manager of the Albany Terminal which stated:
* Will cover Rex only if he can come in @ 3 p. m.
Will not work day & night.
It is about this time that Rogers' union activities became visible. In late September Rogers had a conversation with Lamberson, shop steward for the Company's drivers, and agreed with Lamberson to take Teamsters' membership cards to distribute among the office and clerical employees. Rogers received the blank union authorization cards on October 3 or 4, and during the next couple of days openly solicited about forty of the fifty employees in the clerical unit. Included among these employees were Ellen Thompson, secretary to Traffic Manager Carter, and Betty Cramer, who told Rogers that she was President Dorn's private secretary and was thus not allowed to sign cards.
Meanwhile Butts, on receipt of Colabelli's note of October 4, took up the problem of Rexford's replacement with Walter Dorn, the Company's President. Dorn called Carter in New York City where he was attending a rate meeting, on October 5, and told Carter that he had a matter to discuss at the earliest possible opportunity. After going to Baltimore on October 6, Carter returned early on the 7th of October and met with Dorn.
The conversation at this meeting, as related by Carter, concerned the replacement problem, and in particular Rogers' refusal to work overtime, and his career with the Company. Dorn, according to Carter, Carter then advised Dorn that, to be consistent, there was another employee, Weiss, who had never worked overtime and had indicated that he was unavailable, whereas Rogers had in the past worked nights in emergencies and on vacations. At this point Dorn, according to Carter, said that "if Al Weiss is in the same category you must release him too."
On October 7, Rogers and Weiss were summoned to Carter's office along with Colabelli. The two employees were handed their paychecks and told by Carter that they were being discharged for refusing to fill in and work overtime when Rexford was on vacation. Weiss testified that he asked whether this meant that they now had to work overtime in the terminal, and that Carter replied, Carter testified that he "did say to Al Weiss that * * * he was somewhat a victim of circumstances and it was known that he had this other job and we never made an issue of it."
On November 3, Weiss and Rogers set up a picket line outside the Company's offices, protesting their discharge. The picket line was honored by the union employees as well as most of the clerical employees.
On November 12, Company President Dorn wrote a letter to Weiss advising him that his discharge had been reconsidered, and that he could report for work on November 14, and would be compensated for all unpaid time from the date of the discharge, with the following explanation:
You were separated because I was advised that you failed to make yourself available for emergency fill-in duty. In further discussion of the matter with your department heads I am informed that you never directly refused a request to cooperate with the company\'s requirements.
Weiss returned to work on November 16 with the other strikers, and received full reimbursement for the time lost. Rogers, however, received neither an offer of reinstatement nor reimbursement.
The Trial Examiner found that Rogers was discharged for his union activities in violation of Section 8(a) (3) of the Act. The Examiner reasoned that considering the size of the unit of employees and the opportunity of supervisors to observe Rogers' activity, it was reasonable to infer that the Company had early knowledge of his union activity. The Trial Examiner rejected as not credible the reason given for Rogers' discharge, since although the Company had knowledge of his unwillingness to work overtime on September 19, the Company tolerated and took no notice of it until October 4, the day after Rogers began soliciting employees. Another factor influencing the Examiner was the difference in post-discharge treatment of Weiss and Rogers:
The discharge of Weiss, of course, was in the nature of an afterthought for the penalty, at first, was to be directed only to Rogers. It was only when Carter reminded Dorn that Weiss had consistently refused to work overtime that Weiss was included. Weiss, whose union activity consisted simply in signing a card, was reinstated and reimbursed while Rogers was not.
The Trial Examiner thought it would not serve any purpose to make a finding with respect to Weiss, since Weiss had been reinstated with back pay. The Board disagreed, and concluded that since Weiss had been discharged so that the "treatment afforded both men would be consistent," the discharge of Weiss also violated Section 8(a) ...
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