Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-1994

Yellow Freight Syst. Inc. v. NLRB
Precedential or Non-Precedential:

Docket 94-3014




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Recommended Citation
"Yellow Freight Syst. Inc. v. NLRB" (1994). 1994 Decisions. Paper 144.
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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                    Nos. 94-3014 and 94-3072


                  YELLOW FREIGHT SYSTEM, INC.,
                                       Petitioner No. 94-3014,

                               v.

                NATIONAL LABOR RELATIONS BOARD,
                                      Respondent.

                NATIONAL LABOR RELATIONS BOARD,
                                      Petitioner No. 94-3072,

                               v.

                  YELLOW FREIGHT SYSTEM, INC.,
                                       Respondent.



           Petition for Review and Cross-Application
               for Enforcement of an Order of the
                 National Labor Relations Board


                      Argued July 20, 1994
       Before: Scirica, Lewis, and Seitz, Circuit Judges.
                   Filed: September 30, l994
                           __________

Mark J. Mahoney
Larry G. Hall (Argued)
MATKOV, SALZMAN, MADOFF & GUNN
55 East Monroe Street
Suite 2900
Chicago, Illinois 60603
   Attorneys for Yellow Freight System, Inc.

Aileen A. Armstrong
    Deputy Associate General Counsel
Frederick C. Havard
    Supervising Attorney
Fred L. Cornell, Jr. (Argued)
NATIONAL LABOR RELATIONS BOARD
1099 14th Street, N.W.
Washington, D.C. 20570
   Attorneys for National Labor Relations Board

                        OPINION OF THE COURT

SEITZ, Circuit Judge.


                                 I.


      Before this court is a petition for review by Yellow

Freight System, Inc. ("Yellow Freight") asking us to set aside an

order of the National Labor Relations Board finding violations of

the National Labor Relations Act ("Act").      The Board has cross-

appealed for enforcement of its order.      Our jurisdiction is

conferred by 29 U.S.C. § 160(f).      See Yellow Freight Systems,
Inc. v. NLRB, 313 NLRB No. 15, (Nov. 24, 1993).
           II.   Yellow Freight's Petition for Review

      Yellow Freight's petition for review requires us to decide

whether the Board's determination that John Mendez would have

been hired as a regular employee of Yellow Freight but for his

protected activity is supported by substantial evidence.

      Yellow Freight is a unionized trucking company operating
over six hundred terminals nationwide, including one in South San

Francisco, California--the site of the alleged violations here.

The Brotherhood of Teamsters & Auto Truck Drivers, Local 85

("Union") represents the truckdrivers and dock workers at the

South San Francisco site.

      Employees at Yellow Freight are classified as either

"casual" or "regular" employees.      Regular employees are

designated on a seniority list that grants them employment
opportunities before other employees.    Casual employees are

offered available work after the regular employees have received

their assignments.    By working seventy (70) eight-hour shifts

within six months, a casual employee can obtain "preferential"

casual status.   This preferential status gives such employee

priority over other casuals in regard to work assignments.      Under

the local union agreement and National Master Freight Agreement,

one casual employee is to be placed on the seniority list for

each sixty-five vacation replacement days worked by a casual

employee during each vacation quarter.

      A casual employee is hired as a regular employee at Yellow

Freight in a two-step process.   The first step consists of the

on-site terminal manager's selecting a casual employee for that

position.   The employee fills out a series of forms.   S/he takes

a driver's written examination and a road test.    A background

check is completed, and a physical examination is administered

that includes an alcohol and drug test.    At the second step,

these forms and the results of the examinations are sent to

Yellow Freight's Human Resources Division in Tracy, California.

This office decides whether the casual employee will be hired as

a regular employee.

      John Mendez, the individual grievant, is a member of the

Union and is a "casual" employee of Yellow Freight.     He alleges

that the conduct of Yellow Freight employees violated

§ 8(a)(1) and (3) of the Act when he was not hired as a regular

employee because of his supervisor's alleged hostility toward the

union and Mendez' association with it.    The ALJ and the NLRB
agreed.   Yellow Freight counters that their finding is not

supported by substantial evidence but even if there is a showing

in the record that protected union conduct was a motivating

factor in the employment decision by Yellow Freight, the same

decision would have been made due to Mendez's poor driving

record.

      Before turning to these issues we consider our standard of

review.   This court is not to overturn Board findings unless

"there is no substantial evidence in the record, considered as a

whole, to support them."   Tubari, Ltd. v. NLRB, 

, 453
(3d Cir. 1992); see 29 U.S.C. § 160(e).   According to the Supreme

Court in Universal Camera Corp. v. NLRB, 

, 477

(1951),
     "[s]ubstantial evidence is more than a mere scintilla.
     It means such relevant evidence as a reasonable mind
     might accept as adequate to support a conclusion."
     Consolidated Edison Co. v. Labor Bd., 

, 229
     (1938). Accordingly, it "must do more than create a
     suspicion of the existence of the fact to be
     established. . . . it must be enough to justify, if the
     trial were to a jury, a refusal to direct a verdict
     when the conclusion sought to be drawn from it is one
     of fact for the jury." Labor Bd. v. Columbian
     Enameling & Stamping Co., 

, 300 (1939).



      Mendez's grievance arises out of the actions of his

supervisors, Michael Bloss and Mark Graybill, at the South San

Francisco terminal.   He alleges that these supervisors made

statements and acted in a manner that constituted discriminatory

conduct toward him as a result of anti-union animus and that such

actions and attitudes were motivating factors in his not being

considered for a regular position.   The ALJ and the Board so
found.    Yellow Freight argues before us that the finding is not

supported by substantial evidence.    We turn to that issue.



         Before the Board, Mendez charged that Yellow Freight

violated § 8(a)(1)(3) of the Act.    Section 8(a)(1) of the Act

proscribes as "unfair labor practices" acts of employers that

"interfere with, restrain, or coerce employees in the exercise of

the rights guaranteed in section 157 of this title."    29 U.S.C.

§ 158(a)(1).    Section 8(a)(3) defines "unfair labor practice" as

an act by an employer that is motivated by "discrimination in

regard to hire or tenure of employment or any term or condition

of employment to encourage or discourage membership in any labor

organization."    29 U.S.C. § 158(a)(3).

         In determining whether an employer's decision to deny an

employee advancement constitutes an unfair labor practice under

§§ 8(a)(1)(3) of the Act, the General Counsel bears the burden of

showing by a preponderance of the evidence that protected conduct

was a motivating factor in the employer's decision.    Compare D &
D Distrib. Co. v. NLRB, 

, 641 (3d Cir. 1986).

General Counsel, on behalf of Mendez, presented witnesses who

testified to certain conduct by Yellow Freight employees that the

ALJ and Board held violative of the Act.    The testimony from

these Yellow Freight witnesses involved, inter alia, several
statements made by Bloss and Graybill about Mendez's use of the

union grievance procedure to complain of working conditions and

work assignments.
      Bloss apparently became aware from a dispatcher that

Mendez was making complaints to the union concerning his work

shifts.     Yellow Freight's Br., Exh. A at 10-11.   Bloss was heard

to state that Mendez had developed "an attitude problem."         

his complaints to Raymond Cozzette, a Yellow

Freight employee who acted as the Union's Chief Shop Steward.

Cozzette was characterized as a zealous union official who filed

"a lot of grievance [sic] on behalf of the unit employees."        

¶1.    Bloss testified that he considered Cozzette a

"troublemaker" and that he had communicated that sentiment

publicly.    

      During Mendez's second interview for the position of

regular employee, Bloss asked Mendez "what had [he] thought about

the Union?"     

¶2.   After the question was asked, Bloss

then proceeded to give Mendez his views on the Union and the

collective bargaining agreement and offered Mendez a suggestion

that he should stop hanging around the "wrong people."      

also heard to tell a union shop steward that he did not

intend to hire Mendez because of his alleged attitude problem and

association with "troublemakers" and that he "was just go[ing]

through the motions of interviewing Mendez."      

¶1.
      Based on the foregoing record, we conclude that the

finding of the ALJ and the Board that Yellow Freight's decision

not to advance Mendez for protected conduct was supported by

substantial evidence.

      As an affirmative defense, Yellow Freight offered

testimony from Mark Kirkpatrick, the Manager of the Human
Resources Department, that even if Mendez had been suggested for

a regular employment position, he would have been rejected under

the company's April 1990 policy1 in regard to moving violations.

See NLRB v. Transportation Management Corp., above.    Mendez and

the Union countered that one or both of the terminal supervisors,

Bloss and/or Graybill, knew of Mendez's driving record.   Despite

their knowledge of the violations on his record, on several

occasions they assured Mendez and union representatives Cozzette

and Charles McLin that Mendez was still being considered for a

regular position.   

  Not only was the April 1990

policy not applied at the outset of the hiring process, but

Mendez was given a background check, drug/alcohol test, physical

1
 .  The April 24, 1990 policy issue by Yellow Freight's vice-
president for human resources reads in pertinent part as follows:
     Effective immediately, three key requirements for road
     drivers . . . have been changed.             Use these
     requirements when you screen applicants for driver
     positions:
       . . . .
       Reject: an applicant with any one of these records:

       . . . .
       - A moving violation in the last 12 months.
       - More than one moving violation[] in the last 13-24
       months.

       . . . .

     Applicants must meet these revised requirements, as
     well as the other current requirements you're familiar
     with   -- license,   driving   ability,  and   physical
     condition. If you have any questions about the driver
     requirements, please check with your Human Resource
     office . . . .
Yellow Freight's Br., Exh. A at 23-24.
    This policy was sent from the human resources office to all
of Yellow Freight's terminal managers and supervisors.
examination and a personal interview in preparation for his

application to the position of regular employee.    

(NLRB
Decision & Order).   Finally, it is apparent the company was not

enforcing the policy because, despite Mendez's moving violations,

he was employed as a casual driver and at no time had he been

denied employment by Yellow Freight.   

n.4.2

       Based on his credibility determinations of the witnesses

presented, the ALJ concluded that Yellow Freight had failed to

meet its rebuttal burden.   First, the ALJ rejected Bloss'

testimony attempting to refute the allegations made by Mendez and

the Union "in its entirety" stating that his "demeanor was poor"

and the "lack of corroboration" of his testimony.   

¶4.

While he rejected Bloss' testimony, the ALJ credited the

testimony given by Cozzette, McLin and Cozzette's successor,

Holland, in regard to the actions taken by Yellow Freight

employees.   Second, the ALJ rejected Kirkpatrick's testimony

citing his "poor demeanor," 

¶3, and "conclusionary

testimony which was devoid [of] any kind of specificity,"     

  Kirkpatrick did not provide the ALJ with any documentary

evidence that he or his office had vetoed any applicant based on

the April 1990 policy.   As a result of the lack of supporting

evidence and corroboration, the ALJ refused to accept

Kirkpatrick's conclusion that Mendez would have been rejected, in


2
 .   Mendez was hired as a casual employee prior to the new
policy's adoption and thus it was not considered when he was
initially hired by Yellow Freight. The policy, however, does not
distinguish between regular and casual drivers.
any event, under the April 1990 policy.   In addition to

Kirkpatrick's testimony, the ALJ credited the testimony of Bloss

and Graybill to the extent that it contradicted Kirkpatrick's

testimony.

       The Board agreed with the ALJ that Yellow Freight violated

§ 8(a)(1)(3) of the Act when it failed to hire Mendez as a

regular employee solely because he engaged in activity that is

protected by the Act.   It further held that Yellow Freight had

not carried its affirmative defense that it would not have

employed him as a regular employee in any event.

         Because we conclude that there is substantial evidence

to support the Board's ruling, we will deny Yellow Freight's

petition for review and enforce the Board's order to the extent

it granted relief to Mendez.3
III.   The Board's Cross-Application for Enforcement of its Order

       The Board's cross-application also asks us to enforce its

order to the extent it found that Yellow Freight violated §

8(a)(1) of the Act because its South San Francisco terminal

manager and a supervisor warned employees that they would be




3
 .   The remedy ordered by the ALJ for this alleged violation
included:   Mendez's placement on the seniority list or in a
substantially similar position; removing any indication from his
records regarding the unlawful refusal to hire him; and finally,
making Mendez whole by providing him with any back pay or
benefits and other damages to make up for any loss incurred as a
result of the unlawful refusal to hire. Yellow Freight Br., Exh.
A at 47.
terminated if they walked off the job in violation of Yellow

Freight's National Master Freight Agreement with the Union.4

       The alleged violation involves the actions of supervisors

Bloss and Mike Vega toward Union Agent Terry Hart.   At the time

of the incident, Hart was at the South San Francisco terminal

discussing pending grievances with approximately fifteen drivers.

Bloss asked Hart to leave the premises, citing his disruption of

the workplace.   Hart refused to leave and Bloss called the

police.    When the police arrived, they were taken to a room where

Hart was meeting with the drivers.   Hart attempted to rally the

workers to strike.   Bloss informed several employees that if they

joined Hart in a strike they would be deemed to have quit their

positions because they were on the clock and would thus be

abandoning their jobs.   Hart again attempted to generate a

walkout.   Both Bloss and Vega again told the drivers of the

possibility of termination.   Hart finally acquiesced and told the

drivers to remain on the job.

       The question raised by the Union's allegation is whether

Yellow Freight's employees, Bloss and Vega, interfered with and

restricted protected activity contrary to § 8(a)(1) of the Act.

More explicitly, the issue is whether Hart's actions were


4
 .   The Board adopted the Order of the ALJ in regard to this
issue. The ALJ Order requires that Yellow Freight "[c]ease and
desist from: . . . [t]hreatening employees with immediate
discharge if they engage in an unauthorized work stoppage, where
the collective-bargaining agreement between the Union and [Yellow
Freight] grants the employees immunity from discharge for the
first 24 hours of participation in such unauthorized activities."
Yellow Freight Br., Exh. A at 48.
protected activity under the Union's collective bargaining

agreement with Yellow Freight.5

       The Board held that Hart's activity was protected and thus

concluded that Bloss and Vega violated the Act when they

interfered.   The Board so concluded even though it recognized

that our court had held that when a contract with a no-strike

provision exists, a strike is not protected activity.    Food Fair
Stores, Inc. v. NLRB, 

(3d Cir. 1974).    It refused to

follow our decision.

       In Food Fair an employer terminated "casual drivers" who

engaged in a walkout in violation of their collective bargaining

agreement.    The discharged employees argued that the provision

limiting the employer's options for discipline created an

exception to the no-strike provision.    The Food Fair court

rejected that argument and held that the employer's decision to

5
 . The relevant provision of the collective bargaining agreement
authorizes the employer to take certain actions when there is an
unauthorized work stoppage. The provision recites:
     [T]he Employer, during the first twenty-four (24)-hour
     period of such unauthorized work stoppage in violation
     of this Agreement, shall have the sole and complete
     right of reasonable discipline, including suspension
     from employment, up to and including thirty (30) days,
     but short of discharge, and such employees shall not be
     entitled to or have any recourse to the grievance
     procedure . . . . After the first twenty-four (24)-
     hour period of an unauthorized stoppage in violation of
     this Agreement, and if such stoppage continues, the
     Employer shall have the sole and complete right to
     immediately   further  discipline   or  discharge   any
     employee participating in any unauthorized strike,
     slowdown, walkout, or any other cessation of work in
     violation of this Agreement, and such employees shall
     not be entitled to or have any recourse to the
     grievance procedure.
terminate the employees after only 18 hours on the picket line

was not an unfair labor practice.

       The reasoning of the Food Fair court was that these types
of strikes violate the no-strike provisions in collective

bargaining agreements and are therefore not protected activities

under § 7 of the Act.   Because these strikes are not protected

activities, the court held that immediate discharge of such

employees did not constitute an unfair labor practice.   

       The Board in this case suggests adherence to the Board's

decision in Wagoner Transportation Co., 

,

enforced per curiam, 

(6th Cir. 1970), holding that

despite the no-strike clause, a wildcat strike that lasted less

than 24 hours was a protected activity under § 7 of the Act.

However, in Food Fair our court considered the Wagoner rationale

and holding and specifically rejected them.   Food 

.

       The Board does not suggest that Food Fair is

distinguishable in principle.   Thus, it does not contend that our

Internal Operating Procedure6 is inapplicable.   Consequently, we

will adhere to it.


6
 . Internal Operating Procedure 9.1, entitled Policy of Avoiding
Intra-Circuit Conflict of Precedent, recites the following:
          It is the tradition of this court that the holding of a
          panel in a reported opinion is binding on subsequent
          panels.    Thus, no subsequent panel overrules the
holding
          in a published opinion of a previous panel. Court in
          banc consideration is required to do so.
                         IV. Conclusion

Yellow Freight's petition for review of the Board's Order finding

a violation of Mendez's rights will be denied and the Board's

order to that extent will be enforced.    So much of the Board's

cross-application for enforcement of the Board's order based on

Yellow Freight's violation of § 8(a)(1) will be denied.

                          ___________