1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/144
 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 crossappealed 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, 959 F.2d 451, 453 

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

Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 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., 305 U.S. 197, 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., 306 U.S. 292, 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, 801 F.2d 636, 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." Id. 

Mendez communicated 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." Id.

at 11 ¶1. Bloss testified that he considered Cozzette a 

"troublemaker" and that he had communicated that sentiment 

publicly. Id. at ¶2. 

 During Mendez's second interview for the position of 

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

the Union?" Id. at 12 ¶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." Id. 

Bloss was 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." Id. at 16 ¶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. Id. at 25-27. 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 vicepresident 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. Id. at 1 (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. Id. at 4 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. Id. at 22 ¶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," id. at 27 ¶3, and "conclusionary 

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

¶2. 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, 491 F.2d 388 (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. Id. at 

395. 

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

decision in Wagoner Transportation Co., 177 N.L.R.B. 452, 

enforced per curiam, 424 F.2d 628 (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 Fair, 491 F.2d 

at 396. 

 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. 

 ___________