T.I.M.E.--DC, Inc. v. N.L.R.B.
| Decision Date | 15 November 1974 |
| Docket Number | Nos. 73-2531,73-2952,s. 73-2531 |
| Citation | 504 F.2d 294 |
| Parties | 87 L.R.R.M. (BNA) 2853, 75 Lab.Cas. P 10,453 T.I.M.E.-- DC, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL UNION 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
R. Ian Hunter, Detroit, Mich., A. Read Cone, Bloomfield Hills, Mich., for T.I.M.E.
Dominick Tocci, Albany, N.Y., for Local No. 294.
Elliott Moore, Deputy Associate Gen. Counsel, Majorie J. Gofreed, Atty., N.L. R.B., Washington, D.C., Thomas W. Seller, Regional Director, N.L.R.B., Albany, N.Y., for N.L.R.B.
Before BELL, GOLDBERG and CLARK, Circuit Judges.
Kenneth Smith, a long distance truck driver employed by T.I.M.E.-- DC, Inc. (the Company), was scheduled to report for work at the Company's Albany, New York, terminal on January 17, 1972. For reasons which will appear below, Smith did not present himself in Albany until February 24, 1972. In the interim, and for several months thereafter, the Company and the Albany Local 294 of the International Brotherhood of Teamsters (Local 294) treated Smith in a manner that caused an administrative law judge to conclude on the basis of a hearing that the Company had discriminated against Smith in violation of sections 8(a) (1) and 8(a)(3) of the National Labor Relations Act (the Act) 1 and that Local 294 had prompted that discrimination in violation of sections 8(b)(1)(A) and 8(b)(2) of the Act. The National Labor Relations Board (the NLRB or the Board) adopted the decision of the administrative law judge and ordered the Company and Local 294 to atone for their discriminatory treatment of Smith. 1973, 203 NLRB No. 174. The Company has petitioned this Court for a review of the Board's order, and the Board has submitted an application to enforce its order against the Company and Local 294. An examination of the record convinces us that the NLRB's decision is supported by substantial evidence. The Board's order will be enforced.
The Company, a common carrier of freight, conducts trucking operations from terminals throughout the nation. In the summer of 1971, the Company initiated a change of operations whereby certain of its drivers were to be transferred from one terminal to another. Smith, who had worked for the Company since 1969, chose to transfer from Chicago, where he was a member of Local 710, International Brotherhood of Teamsters, to Albany. Three other Chicago drivers were to make the same move, which was to become effective on January 17, 1972. The four Chicago drivers were to have their seniority dovetailed at the Albany terminal on the basis of their full unbroken road seniority dates, as provided in the Teamsters' National Master Freight Agreement. In Smith's case, this meant that he would be fifth on the seniority list in Albany, after the three other Chicago drivers and one Albany driver but before any new Albany drivers. 2
On December 17, 1971, while on a run back to Chicago, the door of Smith's truck suddenly closed on his hand. Smith signed off sick after returning to Chicago, and although he reported himself available for work on December 20, his hand became numb, so that Smith again signed off sick on December 22 and went home to Kirksville, Missouri, where he remained until February 23, 1972. 3 Smith made no attempt to see the Company's doctor in Chicago, as Company regulations required, but preferred to rely on the good offices of his family doctor, a chiropractor, who treated Smith and eventually released him for work. What is more important, Smith did not notify the Company that he would be unable to report to Albany as scheduled.
Two of the transferred Chicago drivers began work in Albany on January 17 and a third arrived the next day. When Smith did not appear, the Company's Albany Terminal Manager, Anthony Pape, called the Company's driver-supervisor in Chicago, Wayne Hanna, and Hanna, after consulting with another Company official, sent Smith a telegram on January 24 asking him to inform the Company of his intentions within 72 hours after receiving the telegram; Hanna warned Smith that if he did not reply, he would be dropped from the seniority list. The telegram was sent to the residence of Smith's parents in LaGrange, Illinois, an address where Smith had frequently and recently received Company correspondence. Unfortunately, Smith's father had died in December, 1971, and his mother had moved away, so that Western Union returned the telegram to the Company with the information that Smith was deceased. For some reason, this startling news did not seem to stir the Company, which took no immediate action of any sort with regard to Smith.
On January 31, the business agent of Smith's Chicago local (which had received a copy of the telegram) contacted Smith in Missouri and advised him of the Company's inquiry about his intentions. Smith immediately telephoned Hanna in Chicago and said that he had not received the telegram and that the report of his death was somewhat exaggerated. Although Smith mentioned his injury, he did not say when he planned to arrive in Albany.
By this time, the Company had hired a number of new drivers for its Albany operations, all of whom were members of Local 294 in Albany. It is at this point that the record becomes filled with conflicting testimony, for Smith's delayed arrival (and somewhat unusual behavior) created a question in the minds of the new drivers-- and in the mind of Local 294's President, Nick Robilotto-- as to Smith's seniority relative to the seniority of the new drivers. Local 294 resolved this question in favor of its own people and attempted to persuade the Company to reach a similar conclusion.
On February 17, Smith sent a telegram to Pape, the Company's man in Albany, stating that he would soon be released by his doctor and would report to Albany on February 24. After receiving this telegram, Pape told Chicago transferee Hugh Latty that Smith had a good safety record and still had a job. Smith telephoned Pape on February 22 to confirm his arrival and contends that Pape told him: 'Fine, come on up.' Pape denies this and testified that he (Pape) told Smith that there was no work for him in Albany.
At some time after February 17 and before February 24, Pape discussed Smith's pending arrival with Local 294 President Robilotto, who told Pape that since Smith had not appeared 'within the allotted time,' other (Local 294) men had taken Smith's position, so that there was nothing for Smith in Albany. Pape also talked to Richard Pastors, a Company official in Chicago, who told Pape that Smith had been discharged because he had failed to respond to the Company's telegram of January 17. Pastors sent Smith a telegram to this effect on February 22.
Nothing daunted, Smith reported for work in Albany on February 24. Pape told him (in the presence of Hugh Latty) that he had no job and 'would have to go to Local 294 to get things straightened out,' that Robilotto 'would not accept (Smith's) seniority on the Albany board' because Smith had not arrived 'in 30 days.' The next day, Smith and Latty went to the Local 294 hall, where they spoke with the Local's business agent, Bentley, as Robilotto was out. Smith told Bentley that he had been absent because of an injury incurred on the job and showed the agent his doctor's release. Bentley stated that he saw no reason why Smith could not be placed on the seniority list. When Bentley called Pape about the matter, however, Pape restated the Company's position that Smith had no job because he had not reported on January 17. Bentley then asked Pape whether he could represent Smith in a grievance concerning the purported discharge, byt Pape replied that because Smith was not a member of Local 294, the grievance would have to be filed with Smith's local in Chicago. Smith and Latty then marched over to Pape's office, where they called a Company official in Chicago who reaffirmed the Company's position with respect to Smith's discharge.
On February 28, Smith submitted his grievance concerning the discharge to a joint employer-union tribunal in Chicago. Robilotto sent a telegram to the Company on the same day advising the Company that Local 294 'could not accept (Smith) for transfer and seniority' at Albany 'due to the fact that he was to report for work at (Albany) on January 17, and he failed to do so' and had submitted no explanation for his behavior. The Joint State Committee considered this and other evidence and resolved to reinstate Smith as follows: Immediately thereafter, the business agent of the Chicago local advised Smith that the decision of the Committee awarded him the Albany job with full seniority.
Upon receiving the decision of the Chicago tribunal, Pape called Robilotto and told him that Smith would have to be reinstated 'pursuant to the decision.' Robilotto's first reaction was that Smith should not be reinstated; he then agreed to the reinstatement on the condition that Smith would go to the bottom of the seniority list, as the tenth man. The Company adopted this plan.
On March 3, Smith made his first trip from Albany and, upon his return, noticed that a seniority list had been posted. The first three positions on the list were held by Chicago transferees, who had been credited with their full Company seniority. Next on the list was the senior Albany driver, followed by five new men from Local 294. Smith, whose Company seniority dated to 1969, was last on the list with an Albany terminal seniority date of March 2, 1972. After reading the list, Smith attempted to contact Robilotto or Bentley at Local 294 but was unable to...
To continue reading
Request your trial
-
Detroit Fire Fighters Ass'n, Local 344, Intern. Ass'n of Fire Fighters v. City of Detroit
...and Fifth Circuits have implicitly upheld the Collyer doctrine: NLRB v. Thor Power Tool Co., 351 F.2d 584 (CA 7, 1965); TIME-DC, Inc. v. NLRB, 504 F.2d 294 (CA 5, 1974); NLRB v. Cincinnati Local 271, Lithographers & Photoengravers International Union, AFL-CIO, 495 F.2d 763 (CA 6, 1974).30 I......
-
N.L.R.B. v. South Cent. Bell Telephone Co.
...(10th Cir. 1967).6 This circuit has previously indicated implicitly its approval of the Spielberg doctrine. See T.I.M.E.-D.C., Inc. v. NLRB, 504 F.2d 294, 302-03 (5th Cir. 1974); Steve's Sash & Door v. NLRB, 430 F.2d 1364, 1365 (5th Cir. 1970) (per curiam). Cf. NLRB v. Railway Clerks, 498 F......
-
N.L.R.B. v. Pincus Bros., Inc.-Maxwell
...544 F.2d 320, 330 (7th Cir. 1976) (upholding refusal to defer to arbitration award on statutory grounds) and T.I.M.E.-DC, Inc. v. NLRB, 504 F.2d 294, 302-03 (5th Cir. 1974) and NLRB v. Brotherhood of Railway, Airline & Steamship Clerks, 498 F.2d 1105, 1109-10 (5th Cir. 1974) (upholding refu......
-
N.L.R.B. v. Brookwood Furniture, Div. of U.S. Industries
..."attach special weight to timing where the circumstances surrounding discharge would otherwise appear innocent"); T.I.M.E.--D.C., Inc. v. NLRB, 504 F.2d 294, 303 (5th Cir.1974) (company's failure to conduct a fair investigation of alleged basis for discipline, coupled with previous treatmen......