Ryder Services

National Labor Relations Board - Board Decisions

Jan 15, 1992

305 N.L.R.B. 1146 (N.L.R.B. 1992)

1146
305 NLRB No. 179
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Charging Party has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Charging Party has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 We agree with the judge’s dismissal of the allegation that Re-
spondent Employer terminated Charging Party Branch in violation of
Sec. 8(a)(3). Regardless of the events which led up to the termi-
nation, it is clear according to the credited testimony that the Re-
spondent’s proposal to transfer Branch to a different jobsite with
higher wages and benefits was not discriminatory and that the Re-
spondent believed that Branch had accepted the transfer. In these cir-
cumstances, we find that the Respondent established that it would
have terminated Branch for refusing to report to work at the transfer
position even in the absence of his protected conduct.
Ryder Services, Inc. and Andra M. Branch Sr.
Laborers’ International Union of North America,
Local Union 572, AFL–CIO and Andra M.
Branch Sr. Cases 5–CA–20719 and 5–CB–6444
January 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 8, 1991, Administrative Law Judge Michael
O. Miller issued the attached decision. Charging Party
Andra M. Branch Sr. filed exceptions and a supporting
brief.1 The Respondent Employer and the Respondent
Union each filed a brief in response to the exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ryder Services, Inc., New-
port News, Virginia, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
IT IS FURTHER ORDERED that the complaint in Case
5–CA–20719 is dismissed to the extent no violations
have been found, and that the complaint in Case 5–
CB–6444 is dismissed.
have been found, and that the complaint in Case 5–
CB–6444 is dismissed.
James P. Lewis, Esq., for the General Counsel.
E. D. David, Esq. and Ralph M. Goldstein, Esq. (Jimese L.
Pendergraft, Esq., on brief) (Jones, Blechman, Woltz &
Kelly, P.C.), of Newport News, Virginia, on behalf of the
Respondent Employer.
Walter Briscoe, Field Representative, of Williamsburg, Vir-
ginia (Michael Barrett, Esq. and Laurence E. Gold, Esq.
Connerton, Ray & Simon), of Washington, D.C., on brief,
on behalf of Respondent Union.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Newport News, Virginia, on January 15 and
16, 1991, based on charges filed by Andra M. Branch Sr.,
an individual, on October 2, 1989 (Case 5–CA–20719), as
amended on October 26, 1989, and January 5, 1990 (Case
5–CB–6444), and complaints issued by the Regional Director
of Region 5 of the National Labor Relations Board (the
Board) on December 27, 1989 (Case 5–CA–20719), as
amended on October 30, 1990, and May 31, 1990 (Case 5–
CB–6444). The complaint in Case 5–CA–20719 alleges that
Ryder Services, Inc. (the Employer or Ryder) threatened and
otherwise interfered with, restrained, and coerced employees,
and discriminated against the Charging Party by giving him
more onerous and difficult work assignments, by issuing
warnings, by transferring him to a new worksite, and by dis-
charging him because of his union or other protected con-
certed activities, in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act).
The complaint in Case 5–CB–6444 alleges that Laborers’
International Union of North America, Local Union 572,
AFL–CIO (the Union) failed to process the Charging Party’s
grievances for reasons which were arbitrary, invidious, or in
bad faith, in breach of the fiduciary duty owed to employees
whom it represents, in violation of Section 8(b)(1)(A) of the
Act.
The timely filed answers of both Respondents deny the
commission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
PRELIMINARY CONCLUSIONS OF LAW
The Employer, a Virginia corporation, is engaged in pro-
viding janitorial and related services at military bases in the
State of
1147RYDER SERVICES
1 The CA complaint alleges, additionally, that the Employer’s op-
erations have a ‘‘substantial impact on the national defense of the
United States. No evidence, other than the fact that its services are
performed on military bases, was offered to support this assertion,
which the Employer denied.
2 While Branch referred to himself as a ‘‘floor technician,’’ the
collective-bargaining agreement, referred to infra, provides for only
two job classifications, cleaner and crew leader. Branch was, except
for a brief period of time, a cleaner.
3 All dates hereinafter are 1989.
4 The collective-bargaining agreement provides for 8 days of sick
leave per year, with no express provision for carrying over unused
leave.
5 Art. XVI, sec. 1, provides that: ‘‘The Employer agrees that all
conditions of employment relating to . . . general working condi-
tions shall be maintained at not less that the highest standards in ef-
fect at the time of the execution of this Agreement . . .’’
State of Virginia, from its facility in Newport News, Vir-
ginia. It annually purchases and receives products, goods and
materials at that location valued in excess of $50,000 which
are shipped to it directly from points located outside the
State of Virginia and it annually performs janitorial and re-
lated services valued in excess of $1 million for the United
States Navy at its Norfolk Naval Hospital, Norfolk, Virginia
facility. The Employer admits, and I find and conclude, that
it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.1
The complaints allege, the parties admit, and I find and
conclude that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Ryder is the maintenance service contractor at the Coast
Guard Station in Newport News, Virginia. It hired Andra
Branch, the Charging Party, in May 1988 as a janitorial em-
ployee. Branch’s work included the cleaning of floors and
carpets, cleaning bathrooms and removing trash.2 When he
started, Branch worked a split shift, 4 hours in the morning
and 4 more in the evening. In March 1989,3 he gave up the
evening shift, allegedly because he believed that Robert S.
Holloway, the project manager and his supervisor, was
‘‘messing with [his] time.’’ He took another job for those
hours, doing janitorial work in the Virginia Beach Public
School system.
Ryder’s employees at the Coast Guard base are rep-
resented by the Union and are covered by a collective-bar-
gaining agreement effective from October 1, 1988, to Sep-
tember 30, 1991. The field representative responsible for ne-
gotiating this contract and servicing this unit is Larry Carter.
There was no official union steward; from approximately
March through early July, Nora Hinton was the acting stew-
ard.
In March, Branch commenced the filing of a series of
grievances. Allegations of Employer reprisal for his having
done so, and of union failure to properly process those griev-
ances, form the basis of his charges and these complaints.
In early March, Branch was out sick for 2 days. He re-
quested, and was denied, sick leave; Holloway told him that
unused sick leave from the prior year did not carry over.
Branch discussed this with Carter, contending that the denial
was contrary to an alleged promise by Holloway that he
would be allowed to carry over unused sick leave. Carter
told him that he did not have any sick leave coming.4 Branch
decided ‘‘to put [Holloway] to the test to see if he was going
to give [me] sick leave’’ and filed his first grievance. On re-
ceipt of the grievance, Carter told Branch that he would dis-
cuss it with Ryder. Branch claimed to hear nothing further
from Carter on this grievance. On April 18, Holloway denied
the grievance, stating in essence that sick leave did not carry
over for any employee (G.C. Exh. 4).
On about March 29, Branch filed a second grievance al-
leging ‘‘Harassment & Profanity abusive language’’ (by
Holloway) and ‘‘Under staffed,’’ allegedly in violation of the
contract’s maintenance of standards clause.5 According to
that grievance, Holloway had terminated one of the four em-
ployees on the morning shift and required the remaining em-
ployees to make up the work without regard for the work
load. Then, when Branch told someone that their crew was
a worker short, Holloway said that Branch was merely trying
to make himself look good. Additionally, it asserted that
Holloway had insulted Branch, stating that Branch was ‘‘on
[his] high horse but [his] ass is coming down,’’ assigned him
to scrub corners’’ and repeatedly called him a clown when
Branch replied to his orders with a loud ‘‘Yes sir!’’
Branch gave this grievance to Hinton with instructions that
it be delivered to Carter. As Branch recalls, he discussed this
grievance with Carter in early April; Carter told him that
Holloway did not get along with anyone but Carter would
see what he could do. Carter had no recollection of receiving
this grievance but did recall a conversation wherein he told
Branch that the Union had no role in staffing.
Holloway answered this grievance on April 18, finding
fault with Branch’s work attitude and denying that he had
used abusive language in talking with Branch. He further as-
serted that there was no shortage of employees because he
worked with the other crew members when anyone was ab-
sent.
Branch’s next grievance was filed about April 11. It al-
leged that Holloway had placed him on a ‘‘60 day in-house
suspension’’ [i.e. probationary period], apparently for tardi-
ness, had tampered with his hourly wage, and had ‘‘shown
a extremely violent and sometimes abusive attitude towards
[him] . . . has drummed up charges which are false . . . as
a personal vendetta.’’ He denied violating any company rules
or being excessively tardy. Branch had no recollection of dis-
cussing the grievance with either Carter or the Employer.
(G.C. Exh. 6.)
Holloway also replied to this latter grievance on April 18.
That response, which establishes that the Union took the
grievance through step one of the grievance procedure, as-
serts that Branch was not paid for sick leave because he had
called in to the wrong department and because he had no
sick leave left. Holloway denied that he had shown any vio-
lent or abusive attitude toward Branch and claimed that
Branch was frequently tardy.
At the same time that he filed the last grievance, Branch
also filed a grievance alleging that he had been denied over-
time pay. The copy of this grievance which Branch filed
with the Employer (G.C. Exh. 8) does not indicate when he
had worked the overtime. He also filed it with the Wage and
Hour Division of the U.S. Department of Labor; on that copy
(G.C. Exh. 7), he detailed overtime allegedly worked in 10
weeks between July 1988 and January 31, 1989. Branch
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The April 14 termination is not the subject of this CA complaint
and this record contains no details with respect to it.
7 Carter’s testimony indicates that he met first with Holloway, at
step one, before going on to this second step grievance meeting.
8 In the normal course of events, NLRB field attorneys and exam-
iners would endeavor to settle unfair labor practice charges which
appeared, from an investigation, to be meritorious but would not me-
diate or otherwise attempt to resolve disputes between members and
their unions on which no charges had been filed.
9 In so finding, I credit the testimony of former employee
Alphonso Johnson over Holloway’s denial that such a conversation
took place. Johnson was a disinterested witness whose testimony had
a ring of truth to it.
10 This allegation and the Union’s alleged failure to process this
grievance were the subjects of unfair labor practice charges filed by
Branch in Cases 5–CA–21024 and 5–CB–6335. Both charges were
dismissed on findings that the procurement request had been made
claimed that he had not previously objected to the lost over-
time but did so at this juncture because of Holloway’s har-
assment.
This grievance was submitted to Carter through Hinton
and Carter discussed it with the Employer. Holloway denied
the grievance on April 18, asserting that Branch had been
paid overtime at the appropriate rate. Ultimately, Branch re-
ceived some pay for overtime; he credits the efforts of a rep-
resentative of the Department of Labor, Wage and Hour Di-
vision, not Carter, for securing this relief.
On April 14, while absent from work on claimed sick
leave, Branch came in to the Employer’s office to pick up
his paycheck. Holloway saw Branch and terminated him, pre-
sumably for abusing sick leave.6 Branch filed a grievance
claiming that he had been given no warning and no reason
for the termination. He also reasserted a claim to sick pay
and claimed that Holloway had ‘‘lied and exaggerated’’ in
his statements on the earlier-given warning. He gave the
grievance to Hinton who passed it along to Carter. According
to Branch, he was unable to reach Carter until May 1 or 2;
Carter’s office told him that Carter was in training and could
not be reached. However, on May 1 or 2, he spoke with
Carter and Carter set up a meeting with the Employer for the
same day.
The meeting, held at the Naval Hospital, was attended by
Branch, Carter, Holloway, and Robert Miller, Ryder’s gen-
eral manager.7 Carter and Holloway got into a shouting
match; Miller calmed them down and sent both Holloway
and Branch out of the room. Carter and Miller then worked
out a resolution wherein Branch would be reinstated, without
backpay, to a job at the Naval Hospital. However, when
Carter proposed that to Branch, describing it as a good deal,
Branch rejected it. Branch insisted that he was entitled to re-
instatement to his original worksite, with backpay. Carter as-
serted that they could not do better than this and Branch told
him to take it to the next step, arbitration. Carter refused,
saying that arbitration was too expensive and reiterating that
Branch had been offered a ‘‘good deal.’’ When Branch said
that he was going over Carter’s head, Carter told him to ‘‘go
ahead.’’
Branch has related a confusing and not entirely probable8
history of events following this meeting and leading to his
reinstatement on July 3. He claimed that he spoke with an
agent of the NLRB who called Ed Glenn, a higher union of-
ficial, on his behalf. Glenn allegedly spoke to Branch and
was either told about Branch’s efforts to get help from Carter
and Carter’s superior, Connie Ellis, or referred him back to
Carter and Ellis. According to Branch, Glenn asked him to
hold up on filing a charge with the NLRB and requested that
he be given a chance to see what he could do for Branch
first. Subsequently, Branch claimed, Glenn would not return
his calls. At some point during this, Ellis allegedly told
Branch that he would direct Carter to take the matter to arbi-
tration, if necessary, and suggested that Branch get affidavits
from his coworkers.
Carter, under examination by both the General Counsel
and the Union, gave a similarly confusing description of the
events. From his testimony, it appears that the offer of rein-
statement to a job at a different jobsite arose later, in a meet-
ing with both Ryder and Miller. Given the delay between the
May 1 or 2 meeting and Branch’s reinstatement, I find it
likely that a third meeting, at this level, did occur. Carter
also alleged that, at this time, Branch agreed to the transfer.
I cannot credit this assertion given that Branch was reinstated
at the Coast Guard Station. I believe that Carter, who was
admittedly and demonstrably weak on his recollection of
dates, confused conversations occurring before and after
Branch’s reinstatement.
On July 3, Branch was reinstated, with backpay, to his job
at the Coast Guard station. Notwithstanding the several meet-
ings between Carter and his employer, he credits an agent of
the Wage and Hour Division, John Norris, to whom he had
brought his overtime complaints, not Carter, with securing
the reinstatement.
Prior to his reinstatement, Branch’s Wage and Hour com-
plaints had been investigated by Norris. In the course of that
investigation, Norris told Ryder that certain of its book-
keeping and payroll practices were unwise: Holloway had
been signing the workers in and out; Norris suggested that
the employees should sign in and out for themselves. Addi-
tionally, Ryder had been following a practice of paying its
employees for all hours worked right up to payday. In order
to do this, it had been projecting the hours they would work
between the day the checks were prepared and payday, ad-
justing their pay in the subsequent week if they worked more
or less than projected. Norris suggested that the Employer
should only pay for hours actually worked, holding back
some pay until the next payday, rather than projecting how
many hours an employee would work.
Before Branch’s return, Holloway held a meeting with the
employees where he explained the changes in payroll proce-
dures. In doing so, he told them that the changes were being
made because of Branch. He also told one employee that he
considered Branch to be a troublemaker who would not find
things easy when he came back.9
At some point, Carter had seen a Department of Transpor-
tation procurement request, dated in May 1988, which pur-
ported to amend the Coast Guard Station’s janitorial service
contract by raising wages pursuant to a Department of Labor
Wage Determination. It stated that the wage increase was to
be retroactive to October 1, 1987, and the total amount was
shown as $1,213.40 (R. Exh. 6). Immediately upon his return
to work, Branch submitted a grievance claiming that the em-
ployees were entitled to this wage increase pursuant to the
maintenance of standards clause in the collective-bargaining
agreement (G.C. Exh. 10). When he gave it to Carter, he was
told that this had already been taken care of.10
1149RYDER SERVICES
to cover an agreement between Ryder and the Union for a 10 cent-
per-hour contribution to the union training fund, not increased
wages, and the absence of either unlawful motivation by the Em-
ployer or arbitrary, capricious, or discriminatory grievance handling
by the Union.
11 The collective-bargaining agreement provides for 2 weeks of va-
cation after 2 full years of employment and requires: ‘‘In order to
be paid for vacation when you take it, the Employee must submit
a request at least thirty (30) days prior to taking that vacation.’’
12 Carter sought to establish that he had so instructed Branch be-
cause he was on military leave during this period of time. Carter’s
log indicates that he was not on military leave in late June and early
July (or in late July and early August, as he also suggested) and his
memory as to when he might have gone on such leave is totally un-
reliable. It would appear that this instruction coincided with the con-
clusion of Hinton’s service as an acting steward.
13 The collective-bargaining agreement, executed in October 1988,
states in regard to subcontracting that ‘‘Window cleaning is not cur-
rently performed by bargaining unit employees’’ and may therefore
be subcontracted out. In practice, unit employees were washing exte-
rior windows on a regular, if not frequent, basis. Nothing in the con-
tract precluded the Employer from assigning window cleaning to
unit employees. Due to his usual work assignments, Branch may not
have seen any of his fellow workers washing windows and he had
not previously been assigned to that work.
14 At Tr. 159, LL. 4 and 5, ‘‘fire’’ is incorrectly transcribed as
‘‘fight.’’
At the same time, Branch reiterated his contention that he
was entitled to 5 days sick leave. Initially, Carter told him
that he was wrong. In subsequent meetings over the next few
days, Carter was able to secure the Employer’s agreement to
pay him for 2 days of sick leave. Branch was informed of
this on July 6.
Prior to his termination, Branch had scheduled a vacation
for the end of June and early July. On his return, he asked
if he would be able to take his vacation. Miller, observing
that Branch was returning from more than 2 months of lay-
off, with pay, said (allegedly in jest) that he had just had his
vacation. Carter suggested that Branch be flexible and re-
schedule his vacation.11
About July 5, Branch told Holloway that he would start
his vacation on July 15. Holloway refused and said that
Branch would take his vacation when he (Holloway) sched-
uled it. On July 10, Holloway again told Branch that he
could not start his vacation on July 15. Branch filed a griev-
ance, giving it directly to Holloway, as per Carter’s direc-
tions (G.C. Exh. 13). In discussing the matter with Carter,
Branch was told that he should allow the Employer to sched-
ule his vacation and was warned that he could be fired if he
took his vacation on July 15. Holloway answered the griev-
ance on July 13, stating that Branch could take his vacation
after August 1, ‘‘due to work schedule.’’ Carter did not re-
spond to Branch’s insistence that this grievance be taken to
subsequent steps in the grievance procedure.
Also on about July 5, Branch filed a grievance alleging
that Holloway was harassing him. It asserted that Holloway
had questioned the work he had done, had given him assign-
ments, ‘‘in a nasty way,’’ and had criticized his work to an-
other employee on July 3 and July 5. He asked that Hollo-
way be ‘‘reproved for his continued harassment’’ (G.C. Exh.
11). The grievance was given to Hinton who forwarded it to
Carter. Carter spoke with Branch about it on at least one oc-
casion, telling Branch to thereafter submit his grievances di-
rectly to Holloway.12
On the same day, according to Branch, he filed another
grievance, allegedly giving it directly to Holloway (G.C.
Exh. 12). This grievance is similar to the preceding griev-
ance, containing identical introductory language, but alleging,
additionally, that they were working with an insufficiently
staffed crew. Branch received no answer to this grievance.
Miller and Carter discussed Branch and his inability to get
along with Holloway (or vice versa) both before and after the
July 5 grievance was filed. Such discussions took place sev-
eral times a week, sometimes daily. On what appears to be
July 6, Ryder told Carter that he was going to fire Branch.
Carter protested that he could not do that. The proposal that
Branch be transferred to another facility where he would re-
ceive greater pay and benefits as a member of a collective
bargaining unit represented by another union was resurrected,
apparently by Ryder. Carter checked with his superiors and
told Miller, on July 13, that this could legally be done. On
that date, Miller answered (G.C. Exh. 11) stating:
We have analyzed the situation at the Coast Guard Base
between Mr. Holloway and Mr. Branch. In an effort to
keep Employee morale up, not only Mr. Branch but the
others as well, we will move Mr. Branch to another
site, where he will get a higher wage and better bene-
fits.
Miller gave the answer to Carter for transmission to
Branch.
About July 12, Branch drafted another grievance (G.C.
Exh. 14) claiming that Holloway was continuing to tamper
with his time (allegedly changing his sign-out time to reflect
the end of his shift rather than the few minutes later that
Branch claimed he had finished) and otherwise retaliating
against him. On July 14, he was assigned to wash windows,
at step ladder height, on the barracks building and he grieved
this assignment. He contended that this was not in either his
job description or the service contract (G.C. Exh. 15).13 On
the same day, he filed another grievance, again alleging
Holloway’s harassment and profanity (G.C. Exh. 16). That
related to an incident wherein he had gone into Holloway’s
office to pursue his contentions respecting his vacation;
Holloway had told him that he ‘‘ain’t nothing but a fool’’
and told him to take his ‘‘you know what’’ out of the office.
Branch signed all three grievances as both the grievant and
the steward, asserting that the other employees had selected
him to so act. He attempted, unsuccessfully, to give them to
Holloway; Holloway told Branch to have Carter come see
him. Branch then left them for Carter’s consideration, at the
Naval Hospital.
In the ensuing weeks, Branch had several phone conversa-
tions with Carter. According to Carter, Branch agreed to the
transfer in a conversation on July 21. Carter’s testimony is
corroborated by his log. Branch denied that he ever agreed
to the transfer and claims to have told Carter that he would
not accept a transfer because he was not the problem. Carter
allegedly said, in response, that the Employer could transfer
him to another site and claimed that he had talked the Em-
ployer out of firing Branch.14 Carter reported back to Miller
that ‘‘everything was a go,’’ that Ellis had approved the
transfer and Branch had accepted it.
In the course of that, or possibly an earlier conversation,
Branch alleges, Carter stated that he was aware of a ‘‘griev-
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 As noted below, Carter told Miller that Branch had agreed to
the transfer. It is unlikely that he would have lied to Miller unless
he was attempting to cause the Employer to forcibly transfer and/or
terminate Branch. No such conspiracy or Union involvement in
Branch’s termination is alleged or proven here; the Union is not
charged with causing Branch’s termination.
16 In this regard, I credit Miller’s denial that Branch ever told him,
prior to mid-August, that he would not accept the transfer. Miller
was a credible witness who appeared to have clear recollections of
the events which had transpired. I note that Branch prepared a griev-
ance detailing his July 26 conversation with Miller. That recitation
of the conversation does not include an explicit rejection of the
transfer by Branch. Neither did his testimony on direct examination.
ance’’ Branch had ‘‘proposed’’ against him. Branch replied
that Carter knew he was going to complain about the refusal
to take his grievances to arbitration. Carter then allegedly
said that he was ‘‘pissed off’’ at Branch for filing a charge
against him while he was ‘‘busting his butt’’ trying to get
Branch’s job back for him. Carter denied making such a
statement to Branch.
Neither Carter nor Branch was a convincing witness. Their
demeanor gives little assistance in resolving his dispute. The
evidence, too, is ambiguous. On the one hand, it is improb-
able that Branch would have accepted a transfer he had ear-
lier rejected so vehemently. On the other hand, Carter’s testi-
mony is corroborated by his logs, which appear to be legiti-
mate, and by Miller’s testimony.15 On balance, noting the
above, the absence of any contention that the Union caused
Branch’s termination, and the burdens of proof, I find that
General Counsel has failed to establish that Branch rejected
the offer of a transfer. At the very least, I find that the Em-
ployer understood that Branch had accepted the transfer.16 I
also credit Carter over Branch with respect to Carter’s al-
leged expression of hostility toward Branch.
Branch met with Miller on July 26 and received written
answers to the foregoing grievances (G.C. Exhs. 14–16).
Miller denied that Branch had been assigned excessive work
or that he had worked any overtime; he asserted that window
washing was unit work; and he told Branch that he had
looked into Branch’s contention regarding name calling and
found it unsupported.
In the course of this meeting, and in an encounter later
that day, Miller called Branch a troublemaker, with a big
mouth, who had to dot all the i’s and cross all the ‘‘t’s.’’
He berated Branch, as an African-American, for causing
trouble for this African-American owned and managed busi-
ness. He told Branch to ‘‘stop being a fool’’ and to ‘‘stop
all of that bull, that bull whatever that you are doing.’’ The
grievance Branch prepared over that encounter (G.C. Exh.
17) indicates that he was also told that he was going to be
transferred and would be discharged if he refused that trans-
fer; it alleges that he believed that the transfer was in retalia-
tion for his NLRB and wage and hour charges filed against
the Employer and in violation of the collective-bargaining
agreement. In neither his description of the July 26 meeting
in this grievance nor his testimony upon direct examination
did Branch claim that he had told Miller that he would not
accept the transfer. He claimed that only on cross-examina-
tion.
Branch believed that he left this grievance for Carter at the
Naval hospital; he also believed that it was answered. It
bears no answer from management and no other document
in this record purports to be that answer. Carter testified that
he received no grievance concerning Branch’s transfer and
Miller testified that he never saw one. In light of the absence
of any answer in this record, and noting that Carter trans-
mitted all grievances he received to the Employer, who an-
swered each one, I find that Branch never submitted General
Counsel Exhibit 17 to the Union.
Branch had been authorized to take his 10-day vacation
starting on Tuesday, August 1. On July 30, Holloway told
Branch that he could begin his vacation on Monday, July 31
and asked Branch when he was scheduled to return. Branch
replied, ‘‘August 15.’’ When he returned on that day, he was
given an incident report stating that he should have returned
on Monday, August 14. He was told that since he had been
allowed to leave a day early, he had been expected back a
day early.
On August 16, Miller gave Branch a letter transferring him
to the Naval Operations base. It set forth the improved wages
and benefits he would receive. Branch refused to accept the
letter, rejected the transfer and insisted that he was going to
return to his job at the Coast Guard station. He was told to
punch out, was ordered off the base and, on August 22, was
terminated. He wrote but never filed a grievance over his
discharge and made only a single unsuccessful attempt to
reach Carter.
B. Analysis of the CA Charge
1. Section 8(a)(1)
A serious personality conflict existed between Branch and
Holloway. Holloway, though deemed an effective supervisor
by the Employer, had a crude or caustic manner, at least in
his dealings with Branch but also with other employees.
Branch was unable to accept direction from him and mani-
fested this conflict by questioning everything Holloway did
and by filing and refiling grievances.
Not unexpectedly, management was not happy with
Branch. At one point or another, both Holloway and Miller
referred to Branch as a ‘‘troublemaker’’ and otherwise spoke
to or of him in derogatory terms, calling him a ‘‘fool’’
among other things. Before his July 3 reinstatement, Hollo-
way had called Branch a ‘‘troublemaker’’ and said that it
would be hard for him when he returned. Subsequently, Mil-
ler also called him a ‘‘troublemaker’’ and told him to stop
this ‘‘bull’’ referring to Branch’s insistence that all ‘‘i’s’’ be
dotted and ‘‘t’s’’ crossed.
In labor relations parlance, the term ‘‘troublemaker’’ fre-
quently, but not always, refers to an employee who is engag-
ing in unwanted union activity. Compare, for example, Fern
Terrace Lodge, 297 NLRB 8 (1989), and T & H Investments,
291 NLRB 409 (1988), with Amelio’s, 301 NLRB 182 fn.
6 (1991); American Licorice Co., 299 NLRB 145 (1990);
Guarantee Savings & Loan, 274 NLRB 676 (1985); and
Orba Transshipment, 266 NLRB 917, 932 (1983). Where it
does, it may be an indicia of union animus, as in Pennsyl-
vania Electric Co., 289 NLRB 1200 (1988), and, if uttered
in the context of threats of reprisal, may independently vio-
late Section 8(a)(1), as in Corry Contract, 289 NLRB 396
(1988).
In this case, I believe, management’s references to Branch
as a troublemaker clearly related, at least in part, to his
grievance filing, a protected activity. The timing of
Holloway’s use of the expression, while talking of changes
1151RYDER SERVICES
17 His grievance over the assignment of window washing typifies
this attitude. Contrary to General Counsel’s contention, alleging this
to be a discriminatory assignment to more onerous and difficult
work, I find that exterior window washing, at no more than step lad-
der height, was work reasonably and regularly assigned to employees
in the ‘‘cleaner’’ classification. It was no more onerous than clean-
ing bathrooms. It requires an extremely narrow construction of the
collective-bargaining agreement to contend that it was excluded from
the work of the bargaining unit.
necessitated by Branch’s complaints, and Miller’s reference
to Branch’s insistence upon the dotting of all ‘‘i’s’’ and the
crossing of all ‘‘t’s,’’ leads to no other conclusion. More-
over, the reference by Holloway came in the context of an
implied threat, that Branch would find things hard when he
returned; that, I find, is sufficient to warrant the conclusion
that the appellation, itself, was coercive.
The difficulty, in this case, is that Branch was both an un-
cooperative employee and a grievance filer. His activities
overall, appear to be less than reasonable and the comments
of his supervisors do not appear to be totally unwarranted.
However, as the Board stated in Tamara Foods, 258 NLRB
1307, 1308 (1981), ‘‘inquiry into the objective reasonable-
ness of employees’ concerted activities is neither necessary
nor proper in determining whether that activity is protected.’’
The comments of Holloway and Miller could reasonably be
interpretted, by Branch and other employees, as orders that
he (or they) cease filing grievances and as threats of unspec-
ified reprisals if the protected activity continued. Such state-
ments violate Section 8(a)(1), warranting the issuance of a
cease and desist order assuring employees of their right to
file grievances.
2. Section 8(a)(3)
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981) (approved by the Supreme Court in
NLRB v. Transportation Management Corp., 462 U.S. 466,
470 (1983)), the Board set forth the following causation test
to be applied in all discrimination cases turning on motiva-
tion:
First, we shall require that the General Counsel make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor’’
in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that
the same action would have taken place even in the ab-
sence of the protected conduct.
Branch’s record of grievance filing, and Respondent Em-
ployer’s expressions of displeasure with respect thereto, set
forth the requisite prima facie showing to support the infer-
ence of discriminatory motivation. However, I am convinced
that, in this case, the balance of the evidence negates that in-
ference.
As noted above, Branch was a nettlesome employee who
manifested his uncooperative attitude by filing grievances to
question every action of his supervisor. Because of his atti-
tude, particularly his inability to accept the direction of his
immediate supervisor,17 the Employer proposed the solution
which would have the least adverse impact on him. That so-
lution was a transfer to another unit where he would perform
similar work, with greater pay and benefits, and still enjoy
the benefits of collective bargaining. I believe that such a so-
lution would have been proposed whether Branch’s attitude
manifested itself in the filing of grievances or in other, un-
protected, activities. Indeed, it is likely that he would have
been discharged, rather than transferred, had his grievances
not brought the Union into the picture to argue for the less
severe remedy.
The transfer was worked out with, and approved by,
Branch’s collective-bargaining representative as a resolution
of his grievances. Initially, I have found, it was accepted by
Branch and the Employer was so informed. He was trans-
ferred pursuant to that decision and it was only when he re-
fused to accept the transfer that he was terminated. I con-
clude that he was terminated for failing to report to work
pursuant to a mutually agreed-to solution to the serious per-
sonality conflict existing between himself and Holloway, a
conflict for which he was largely responsible, and not be-
cause he had filed grievances against the Employer.
Similarly, I also find the evidence insufficient to warrant
a conclusion that the warning issued to Branch on August 15
was discriminatorily motivated. Branch was, at most, entitled
to 10 days of paid vacation. If he thought that he was being
given an extra day of paid vacation when Holloway said he
could start 1 day early, he was wrong. It was not unreason-
able for Holloway to have expected him to return after 10
days, and to give him mild discipline for failing to do so.
There is no evidence connecting this discipline to his pro-
tected activity.
Accordingly, I shall recommend that the 8(a)(3) allegations
be dismissed.
C. The 8(b)(1)(A) Charge
The complaint charges that the Union, in breach of the
duty of fair representation owed to unit employees, failed to
process Branch’s grievances. The Board, citing Vaca v.
Sipes, 386 U.S. 171 (1967), has stated, with respect to that
duty:
We note that the duty of fair representation requires
that a grievance filed by a bargaining unit member . . .
not be processed by the Union in an arbitrary, discrimi-
natory, perfunctory, or bad faith manner.
American Postal Workers (Postal Service), 277 NLRB 541,
fn. 1 (1985).
Without contravening its statutory obligation,
A union may refuse to process a grievance or handle
the grievance in a particular manner for a multitude of
reasons, but it may not do so without reason, merely at
the whim of someone exercising union authority.
Regional Import Trucking Co., 292 NLRB 206, 230 (1988),
quoting Griffin v. Workers, 469 F.2d 181, 183 (4th Cir.
1972).
Under the foregoing standard, a union has broad discretion
in deciding which grievances it will pursue and how it will
pursue them. Within that range of discretion, a union is not
required to advocate the employee’s position; it may seek an
amicable adjustment different than that sought by the em-
ployee or agree with the employer regarding the merits of a
grievance and refuse to further process a grievance. Hotel &
Restaurant Employees Local 64 (HLJ Management), 278
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 773 (1986). It does not breach its duty even if it acts
negligently with respect to a grievance, so long as it does not
simply ignore a meritorious grievance or process it perfunc-
torily. Laborers Local 1191 (S.J. Groves & Sons), 292
NLRB 1022 (1989).
Applying the above to General Counsel’s allegations, I am
unable to conclude that the Union breached its duty of fair
representation with respect to Branch and the grievances
which he filed. The record reveals, if not activist representa-
tion on Branch’s behalf, at least that the union representative
considered his grievances, referred them to the Employer,
met with the Employer on most of them, and resolved those
which lent themselves to resolution.
In his first grievance, Branch claimed entitlement to sick
leave unused in the prior year. He raised this issue again in
the fifth grievance in this series. Carter disagreed with
Branch’s understanding and believed that Branch had no sick
leave coming. Nonetheless, he pressed the issue with the Em-
ployer and Branch was awarded an additional 2 days of sick
leave.
Branch’s second grievance, and later ones, alleged under-
staffing and abusive language from Holloway. Carter dis-
agreed with Branch’s interpretation of the collective-bar-
gaining agreement with respect to staffing; he believed that
the determination of crew size was a management preroga-
tive. Nonetheless, he presented the grievance to management
for consideration at step one. Carter took more seriously
Branch’s allegations concerning his relationship with Hollo-
way. These repeated allegations were the subject of repeated
meetings with all levels of management; they resulted in a
proposed solution, jointly arrived at by Carter and the Em-
ployer, that a serious personality conflict existed between
Branch and Holloway which would be best resolved by
transferring Branch to another facility.
Carter processed Branch’s next grievance, alleging more
harassment by Holloway, including an April 10 ‘‘in-house
suspension,’’ through the first step, resulting in an answer
from Holloway which denied Branch’s claims. It also proc-
essed his simultaneously filed overtime pay grievance
through the first step. That grievance was also the subject of
a complaint to the Department of Labor, Wage and Hour Di-
vision, and was resolved with the payment for some overtime
to Branch. While Branch credits the wage and hour investi-
gator, it is not clear what role, if any, the Union had in this
resolution. At any rate, it is difficult to see how a union
would breach its duty of fair representation by failing to vig-
orously pursue such a grievance where the employee’s com-
plaint was under active consideration by the appropriate gov-
ernmental agency.
Branch’s grievance over the ‘‘in-house’’ suspension be-
came moot with his discharge on April 14. Carter processed
his discharge grievance in meetings with all of the Employ-
er’s management and, although he refused Branch’s demand
that he take the issue to arbitration and suggested that Branch
should accept a proffered transfer, Branch was reinstated,
with full backpay. Whether Carter deserves all, some, or
none of the credit for that reinstatement is irrelevant; there
was clearly no obligation to pursue arbitration on a grievance
which was satisfactorily adjusted.
Immediately on his reinstatement, Branch filed another se-
ries of grievances. With respect to those dealing with the al-
leged wage increase and his demand that he be allowed an
immediate vacation, Carter believed Branch to be wrong and
so counseled him. The wage grievance, and the Union’s al-
leged failure to process that grievance, were the subjects of
unfair labor practice charges filed by Branch against both the
Employer and the Union; those charges were dismissed. This
alleged failure is not in issue before me. Branch allegedly
asked Carter to take the vacation grievance to the second
step of the grievance procedure. While he claimed to have
received no response from Carter, that grievance was an-
swered by Miller, at what would appear to be the second
step.
Branch also grieved again his contentions that Holloway
was harassing him and that the crew was understaffed. The
latter grievance was given directly to Holloway and it ap-
pears that the Union never received it. At any rate, it is simi-
lar to earlier raised contentions, which Carter had rejected
based upon his interpretation of the management-rights
clause. A refusal to process this grievance, even if it had
been brought to his attention, would have been within
Carter’s permissible range of discretion.
The harassment grievance, also a reiteration of earlier
complaints, was actively pursued by Carter, resulting in a
number of meetings with management. He objected when the
Employer suggested discharging Branch and agreed that the
conflict would best be resolved by transferring him away
from Holloway’s supervision, to a position where he would
suffer no financial hardship. This was a reasonable and re-
sponsible solution; that it may have pleased Carter to remove
this bothersome employee from under his area of authority
(as General Counsel seems to speculate) does not render it
a breach of Carter’s duty of fair representation.
Branch’s next series of grievances, alleging ‘‘wage tam-
pering,’’ ‘‘retaliation,’’ assignment of work not in his job de-
scription (window washing) and ‘‘harassment and profanity’’
are essentially reassertions of earlier claims. He gave them
to Carter and Carter brought them to management’s attention.
They were answered, as rejected, at the second step by Mil-
ler.
Branch’s alleged July 26 meeting with Miller lead to the
preparation of another grievance, contending that he was
being illegally transferred and that Miller had talked roughly
to him. I have found that this grievance was never filed.
Even if it had been, and if Carter had refused to process it,
the evidence would not establish a breach of the duty of fair
representation. At this point, Carter had concluded, reason-
ably and legitimately, that the transfer of Branch was in ev-
eryone’s best interests. This he could legally do and he
would have been under no obligation to process a grievance
which ran counter to that agreed-to solution.
As noted, Branch filed no grievance over his termination.
In sum, Carter may not have been a vigorous advocate for
Branch’s claims but he was not required to assume such a
role. HJL Management, supra. Neither was he required to
take a grievance to arbitration merely because the grievant
demanded it. He accepted Branch’s grievances, evaluated
them, referred them to the Employer even when he disagreed
with Branch’s premises, represented Branch’s interests when
he believed there was any merit to the claim, secured some
relief for Branch, prevented the Employer from discharging
Branch and worked out a reasonable settlement of Branch’s
problems. Even if he resented Branch’s complaint against
him, and even if he failed to return all of Branch’s phone
1153RYDER SERVICES
18 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
19 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
calls, there was no breach of his statutory duty. Accordingly,
I shall recommend that the CB charge be dismissed.
CONCLUSIONS OF LAW
1. By calling an employee a troublemaker and threatening
that employee with unspecified reprisals because of his union
and other protected activities, the Employer has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and Section 2(6) and (7) of the Act.
2. The Employer has not violated the Act in any other
manner set forth in the complaint.
3. The Union has not violated the Act in any manner set
forth in the complaint.
REMEDY
Having found that the Employer has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action, i.e., the
posting of a notice to employees assuring them of their rights
under the Act, designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The Respondent, Ryder Services, Inc., Newport News,
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Calling employees troublemakers and threatening them
with unspecified reprisals because of their union and other
protected activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Newport News, Virginia, and
other worksites copies of the attached notice marked ‘‘Ap-
pendix.’’19 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
In all other respects, the complaint in Case 5–CA–20719
is dismissed.
The complaint in Case 5–CB–6444 is dismissed in its en-
tirety.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refer to employees as troublemakers or
threaten them with reprisals because they engage in union or
other protected activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed by Section 7 of the Act.
RYDER SERVICES, INC.