Before: KEITH and CONTIE, Circuit Judges, and POTTER*fn*
Per Curiam. This is an appeal from a decision and order by the National Labor Relations Board (NLRB). The NLRB found that the appellant, Blue Arrow, Inc. had violated Section 8(a)(3) of the National Labor Relations Act (NLRA) by discharging Theodore McCartney because of his union activities. The NLRB ordered McCartney reinstated to his former position with back pay. This appeal followed. For the reasons set forth below, we affirm.
Blue Arrow, Inc. (Company) is a common carrier of freight headquartered in Grand Rapids, Michigan. It operates from terminals throughout Michigan and between those terminals, and Chicago, Illinois. With the International Brotherhood of Teamsters, Chauffeur, Warehousemen and Helpers of America (Union), it is a party to the National Master Freight Agreement and the Central States Area Over-the-Road Supplemental Agreement. All the Company's over-the-road drivers are members of the Union, and all are subject to negotiated Uniform Rules and Regulations Governing Actions of Road Drivers promulgated under authority of the collective bargaining agreement.
Theodore McCartney has been employed at Blue Arrow since 1968. He started as a garageman, and in 1976 was assigned as an over-the-road driver at Blue Arrow's Burton, Michigan terminal near Flint, Michigan. For approximately two years preceding his discharge, he served as the union steward for all over-the-road drivers at this terminal.As steward, he was responsible for bringing problems relative to the collective bargaining agreement to the Company's attention. This position particularly included the initiation of grievances against the company.
In this role, McCartney filed several grievances against the Company. He grieved the company's policy of paying the drivers a straight 20 minutes for fueling their vehicles while on duty, regardless of the amount of time they actually spent. This grievance resulted in a favorable decision to the employees. McCartney also complained about the Company's practice of hiring new employees without posting notices of job openings for which current employees might be eligible. He further complained about a Company practice of pressuring employees to forego holiday pay when they were entitled to receive it under the collective bargaining agreement. Other areas which McCartney complained about included; the company's plan to change its dispatch system in order to reduce costs, which would result in some drivers benefiting at the expense of others; the installation of emergency telephones at company terminals for use by drivers after business hours because he considered the absence of such phones a serious threat to driver safety; that the Burton terminal bunkhouse, which the Company provided, was unsanitary.
McCartney was also responsible for ensuring that certain rates were paid to drivers for "spotting" assignments. The Company had an agreement with two local cartage companies in the Flint area, whereby the company would "spot" at their yards loaded trailers for delivery to ultimate consignees and, upon completion of the delivery and unloading, retrieve the empty trailers. These spotting assignments were not particularly lucrative for the drivers, so McCartney initiated negotiations with the Company which resulted in an agreement providing for specified rates to be paid for such assignments. McCartney testified that his efforts on behalf of his fellow drivers were a source of irritation to the Company. This led Burton Terminal Manager Wayne Burch to accuse McCartney of throwing his "weight around" as union steward, of making "undue waves", and of being the "head troublemaker". Lee Miller, another Company driver, also testified that he heard Wayne Burch tell McCartney that "I will fire you one of these days and I will make it stick."
The normal runs for road drivers domiciled at Burton are from the Blue Arrow Terminal to the Company's terminal in Chicago and from Chicago back to Burton. It is not unusual, however, for drivers enroute to Burton to be assigned an intermediate stop in a city like Pontiac, Michigan where the Company has no terminal. For these trips of less than 300 miles, the drivers are paid a "guarantee" equal to eight times their regular hourly wage, because that amount invariably exceeds what they could earn on a mileage rate basis. Additionally, the drivers are entitled to extra pay (over and above the eight-hour guarantee) for any time during which they are required to be on duty, but are not actually driving; such as during hookups, maintenance delays, and unloading operations at intermediate stops.
Each driver claims pay over such non-driving time by submitting to the Chicago terminal a trip report showing the amount of time consumed and the reasons for it. Each driver is also required by the U.S. Department of Transportation regulations to complete and file with the company a daily driver's log to indicate how much of his on-duty time was spent actually driving.
On March 27, 1980, McCartney was assigned to make a run from the Company's Chicago terminal to its Burton terminal, with an intermediate delivery to Pontiac Motor Division in Pontiac, Michigan. McCartney began his March 27th run hooking up his trailer at the Chicago terminal, for which he claimed the standard extra thirty minutes time. He then proceeded toward Burton until he got a flat tire, and had to call for service from Jerry's Tire Kalamazoo. McCartney properly claimed a two-hour service call as extra-duty, non-driving time. Following the flat tire repair, McCartney returned to Burton, when, at about noon, he turned off the highway and headed for Pontiac. He arrived in Pontiac at about 1:00 p.m., and spent approximately one hour and 36 minutes inside the plant. He then drove back to the highway and continued on to the terminal.
In completing his driver's log for this trip, McCartney showed all the time between noon and 3:00 p.m. as "On Duty (Not Driving)", although he actually only spent an hour and 36 minutes at the Pontiac plant. Logging the time in this way allowed him to claim three hours' pay in addition to his guaranteed minimum. The Company had never instructed its drivers how to log the Pontiac run and testimony was offered by other drivers (Lee Miller, Norman Meintz, Evan Capps), that the manner in which McCartney logged his time was the normal practice.
Following completion of his March 27th trip, McCartney submitted his trip report and log to the Company. On April 1, a payroll clerk at the Company's main office in Grand Rapids called Burton Terminal Manager, Wayne Burch, to ask whether the three hours claimed by McCartney was a reasonable amount for a delivery at Pontiac. On checking the appropriate manifests, Burch discerned that McCartney had actually spent only one hour and 36 minutes in the Pontiac plant. Burch never asked McCartney for an explanation as to why he claimed a total of three hours for the delivery. Instead, on April 3, McCartney was given a paycheck authorized by Burch, which included three hours' pay for the Pontiac delivery. On April 18, Burch entered a notice of discharge against McCartney based on the company's Uniform Rule 3(d) requiring discharge for "theft or dishonesty". That same day, the terminal dispatcher informed McCartney that he was discharged.
McCartney was the first regular, non-probationary employee ever discharged for alleged theft or dishonesty. McCartney's discharge contrasted with the Company's prior practice of seeking an explanation from a driver for a wage claim believed to be excessive. If the Company was not satisfied by the explanation, it would decline payment, thus leaving it to the employee to seek redress under the grievance procedure. Under the company's Rule 4(a)--proscribing the submission of incorrect reports or trip sheets by a driver--the specified discipline was "reprimand to 3-day layoff".
In accordance with the collective bargaining agreement, McCartney filed a grievance protesting his discharge. The grievance was arbitrated before a joint Arbitration Committee, which rendered its decision on May 13, upholding the discharge. McCartney requested reconsideration, which the Committee denied.
McCartney appealed the arbitration award and simultaneously filed unfair labor practice charges with the NLRB. The NLRB found that because of his aggressive activities as union steward, the company regarded McCartney as undesirable and seized on his filing of an inaccurate trip report to remove him. The NLRB found that the discharge was discriminatory in violation of Section 8(a)(3) and (1) of the NLRA, 29 U.S.C. § 158(a)(3) and (1).
Our standard of review of an NLRB decision and order is whether it is supported by substantial evidence on the record as a whole, even if the court would reach a different result on de novo consideration. Universal Commerce Corp. v. NLRB, 340 U.S. 474, 488 (1951); NLRB v. Medical Mutual of Cleveland, 659 F.2d 726, 727 (6th Cir. 1981). The reviewing court must recognize the NLRB's competence in the first instance to judge the impact of utterances made in the context of the employer-employee relationship. NLRB v. Gissel Packing Co., 395 U.S. 575, 620 (1969).
Section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), prohibits an employer from discharging an employee because of his or her union sympathies or activities. NLRB v. Naum Brothers, Inc., 637 F.2d 589, 591 (6th Cir. 1981); NLRB v. Midland Ross, Inc., 653 F.2d 239 (6th Cir. 1981).
Under the test applied by the NLRB for determining motivation in unlawful discharge cases, the General Counsel has the initial burden of showing by a preponderance of the evidence that protected conduct was a "motivating factor" in the decision to discharge the employee. Republic Die and Tool Co. v. NLRB, 680 F.2d 463, 464 (6th Cir. 1982). Once that showing is made, the NLRB has held, following the Supreme Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), that the burden shifts to the employer to show that it would have discharged the employee even if the employee had not engaged in protected activity. NLRB v. Wright Line, Inc., 662 F.2d 899 (1st. Cir.), cert. denied, 455 U.S. 989 (1981). The NLRB's burden-shifting analysis as set forth in Wright Line, has been approved by this court. NLRB v. Magnetics International, No. 81-1435 (6th Cir. February 1, 1983); Republic Die and Tool Co., 680 F.2d at 465.
The appellant asserts that the NLRB's finding that McCartney has been discharged for other than legitimate business reasons was not supported by substantial evidence. However, a review of the record, does not substantiate this assertion.
Although, there is some merit to the appellant's assertion that it acted in a legitimate business interest, because a "theft or dishonesty" had occurred, there is substantial evidence that it did so on a pretextual basis. Moreover, it was done in a discriminatory manner.
McCartney made a run from Chicago to Burton with an intermediate stop in Pontiac. No one from the company had ever shown him how to log and claim such a run. Nor had other drivers been shown. In fact, driver Norman Meintz testified without contradiction that he once asked a dispatcher how to log it, and the dispatcher advised him to "cheat like everyone else".
The lack of an announced Company policy on logging and claiming the Pontiac run led the drivers, McCartney included, to lot it differently at various times. As indicated by testimony by Lee Miller, Evan Capps, and Norman Meintz, it was common practice to log the entire Pontiac segment in the same way that McCartney did.
On April 1, the terminal manager, Wayne Burch, was notified that McCartney had claimed three hours pay for his March 27th run. He conferred with his dispatcher who confirmed that the "usual time" for the Pontiac delivery was "approximately one-half that which McCartney had claimed". However, despite Burch's cognizance of McCartney's excessive claim, he allowed him to be paid for the extra time. Once McCartney had possession of the payroll check, Rule 3(d) covering theft and dishonesty was invoked against McCartney. In contrast, a different disciplinary rule, as noted by the NLRB, Rule 4(a) appears equally, if not more applicable to McCartney's conduct. Under that rule, failure to "properly make out reports and trip sheets" is punishable by discipline of "reprimand to 3-day layoff".
The record supplies substantial evidence that there was discrimination in the application of the company's policy. The record indicates that it was common practice for the company's drivers to report the Pontiac run in the manner that McCartney had. Yet, he was the only one disciplined, and discharged, for filing such a report. The Company asserted that it had no knowledge of the inaccurate reports filed by other drivers, since it had a policy of investigating only those reports in which a driver claimed extra pay for time in excess of two hours. This assertion is contradicted, however, by the testimony of drivers Evan Capps and Norman Meintz, who stated that their claims were in excess of two hours for the Pontiac run. The Company admitted that when these logs were presented, the claims were investigated and discussed with the two men. The Company paid them the amounts that were correct, while denying the excess amounts claimed. Neither employee was discharged for submitting incorrect claims.
When viewing this incident in light of testimony that was given about Burch's statements, that McCartney was head troublemaker; that the manner in which McCartney had logged his time was common practice; the Company's deviation from its practice of investigating claims over two hours, rather than simply discharging the person provide substantial evidence to support the NLRB's decision that the discharge was due to McCartney's union activities and violated § 8(a)3 of the NLRA.
The appellant's second contention is that the NLRB erred when it refused to defer to the decision of the joint arbitration. This contention is without merit.
Section 10(a) of the Act, 29 U.S.C. § 160(a) provides that the NLRB's power to prevent unfair labor practices "shall not be effected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise..." Thus, it is well settled that the presence of an arbitration award does not oust the NLRB of jurisdiction to adjudicate unfair labor practices involving the same factual situation. NLRB v. Strong Roofing & Insulating Co., 393 U.S. 357, 360-362 (1969). The Supreme Court has stated, "The superior authority of the Board may be invoked at any time", and "should the Board disagree with the arbiter..., the Board's ruling... would take precedence." Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272 (1964). Accord John Klann Moving & Trucking Co. v. NLRB, 411 F.2d 261 (6th Cir. 1969).
The Board's decision on whether to defer to an arbitration award lies within the Board's broad administrative discretion and will not be overturned by the courts unless it constitutes an abuse of that discretion. See NLRB v. Magnetic International, No. 81-1435 (6th Cir. Feb. 1, 1983); John Klann Moving & Trucking Co. v. NLRB, 411 F.2d 261 (6th Cir. 1969); Pioneer Finishing Corp. v. NLRB, 667 F.2d 199, 202 (1st. Cir. 1981).
A requirement for Board deferral--relevant to the instant case--requires that the Board not defer to an arbitration award "unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator." Suburban Motor Freight, Inc., 247 NLRB 146 (1980). This court, in its recent decision in NLRB v. Magnetics International, Inc., No. 81-1435 (6th Cir. February 1, 1983) specifically endorsed the Board's policy as enunciated in Suburban Motor Freight. The Court there stated:
[We] will honor the Board's decision to defer only when it appears from the arbitrator's award that the arbitrator considered and clearly decided all unfair labor practice charges. We will not speculate about what the arbitrator must necessarily have considered. Rather, we will examine the arbitrator's award itself and the degree of congruence between the award and the charges brought under the statute. No. 81-1435, Slip Op. at 10-11.
Applying this principle, the Company has failed to show that the NLRB abused its discretion by declining to defer to the arbitration award here. McCartney's grievance contained to allegation suggesting that his discharge was discriminatorily motivated but, rather, consisted entirely of a denial of the Rule 3(d) charge against him of theft and dishonesty. And, as shown above, the arbitration award itself was merely a single sentence upholding McCartney's discharge under Rule 3(d). Finally, in its brief to the Court, the Company candidly "concedes that there is no evidence in the record that the discrimination issues was explicitly raised in the arbitration proceeding" (Emphasis suppled.) Although appellants argue that the arbitration committee must have considered the discrimination issue because it is part of the statute, this is unsubstantiated. Based on the preceding findings, the NLRB's decision not to defer to the arbitration committee was supported by substantial evidence.
Accordingly, we enforce the decision of the National Labor Relations Board.
* Honorable John W. Potter, United States District Court, Northern District of Ohio, sitting by designation.