Yellow Freight clearly took adverse action
when it issued disciplinary letters to, and discharged, Frechin for wasting company time. The
critical inquiry is whether retaliatory animus motivated the adverse actions.
Yellow Freight articulated a legitimate reason for disciplining and
discharging Frechin, that he wasted company time. Under the progressive discipline provision
of the applicable collective bargaining agreement, the company issued various warning letters
and notices of intent to suspend and discharge Frechin. He was allowed to remain on the job
while he grieved the issuance of the notices. T. 141; see RX 1.
On the first occasion warranting discipline, Yellow Freight employee Dean
Hazard saw Frechin sitting in his truck at the dock doing "absolutely nothing" for
15 minutes, from 9:15 a.m. to 9:30 a.m., prior to leaving the gate at 9:44 a.m. CX 13. Yellow
Freight issued a warning letter for abuse of company time in response to this December 19, 1995
incident. Id.
A second written warning was issued concerning a February 28, 1996
incident, when dispatcher Mark Hayes saw Frechin taking time to sweep light dust off the trailer
door and twice had to tell Frechin to get moving. CX 14. Frechin eventually left the yard at
9:40 a.m. Id .
Yellow Freight sent Frechin a letter of intent to suspend after an incident
on March 14, 1996, in which Frechin received his assignment at 9:00 a.m., his trailer and tractor
were pre-hooked (which saved time), and Frechin still had not departed at 9:32 a.m. CX 15.
When Hayes asked Frechin if there was a problem, Frechin refused to answer unless a shop
steward was present. T. 123-124. He left the yard at 9:33 a.m. CX 15.
On March 28, 1996, Yellow Freight issued Frechin a letter of intent to
discharge because on that day, Frechin received his assignment at 9:00 a.m. and was the last
driver to leave when he departed after 9:30 a.m. CX 16. Frechin received a second
letter of intent to discharge concerning 16 minutes he listed for completing paperwork at the end
of the work day on May 16, 1996. CX 17. Yellow Freight gave Frechin six more discharge
letters of intent to discharge concerning late departures from the terminal, at 9:24 a.m. or later,
between May 18 and July 25, 1996. CX 18 - 20. Concerning an incident on May 28, 1996,
former Yellow Freight employee William Calvo watched Frechin and noted that he received his
work assignment at 9:00 a.m., walked around the truck from 9:15 to 9:17, drove to the front of
the terminal building and parked, walked into the break room, returned and spent the time from
9:24 to 9:30 just sitting in his unit prior to departing. RX 26. Yellow Freight discharged
Frechin on January 6, 1997 for abusing company time.
Frechin contends that he always was working and that his pre-trip safety
inspections caused him to depart later than others. T. 131, 152-153. He argues that the reason
given by Yellow Freight is a pretext for discrimination because other drivers took nearly as long
as he did to exit the terminal, but they were not disciplined or discharged. Complainant's Brief
(Comp. Br.) at 6.
At first blush, the testimony of other witnesses seems to support Frechin's
argument of pretext. Yellow Freight employee Kelly Burke and former employee Patrick
McQuade testified that they took a similar amount of time to depart from the same terminals as
Frechin, but they were not disciplined for wasting company time. T. 11-12, 18-19 (Burke, 20
to 25 minutes); T. 41 (McQuade, 20 to 30 minutes). Other evidence suggests, however, that
McQuade and Burke misstated the amount of time they took prior to departure. An exhibit
composed of Burke's manifests shows an average time of 12.4 minutes and a range of 3.4 to 21
minutes between receipt of manifest and time out of the gate. R. D. and O. at 6-7, discussing RX
45.4 The ALJ discredited McQuade's
estimation of the time he took to leave the terminal because Yellow Freight had fired him for
dishonesty for marking his timecard, and McQuade was engaged in litigation against the
company. R. D. and O. at 15. For these reasons, the testimony of the other drivers has not
convinced us that they routinely took as long to depart as did Frechin.
Frechin also points to other manifests that show a range of 28 to 34
minutes from receipt of manifest to departure from the gate. CX 12. As the ALJ pointed out,
however, these manifests do not show if they were from the same terminals to which Frechin
was assigned and do not show whether mechanical failure may have caused a delay. R. D. and
O. at 16. We do not find the manifests of other drivers at unidentified terminals to be convincing
evidence that Frechin unfairly was singled out for discipline because of wasting company time.
Frechin also contends that "wasting company time" was
pretextual because Yellow Freight did not have a written policy requiring drivers to leave the
terminal within 15 minutes of receiving their manifests. Comp. Br. at 4. All parties agree that
the policy was not written, but that does not negate its existence, as the ALJ found. R. D. and
O. at 14. We agree with the ALJ that the company informed drivers of the 15 minute policy
through pre-shift meetings and a posted memorandum informing drivers of the need to reduce
terminal time. Id. Moreover, Burke knew of the 15-minute policy, T.20, and
Schwendeman testified that he was aware "that the company had expectations of getting
us out of the gate in a timely fashion." T. 84.
We find that Yellow Freight disciplined and discharged Frechin for
deliberately wasting time, and not because he performed thorough pre-trip examinations, made
safety complaints, or engaged in any other activity protected under the STAA. Accordingly, the
complaint is DISMISSED .
SO ORDERED .
DAVID A. O'BRIEN
KARL J. SANDSTROM
[ENDNOTES]
1
2 Frechin v. Yellow Freight
System, Inc ., Case No. 96-STA-9, Final Dec. and Order, Aug. 9, 1996, the Board found that Yellow
Freight assigned Frechin to a less desirable truck for legitimate business reasons and dismissed the
complaint. RX 5.
3 Compare R. D. and O. at 11-12.
4
