Consolidated Freightways Corp., of Delaware

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consolidated Freightways Corporation of Delaware' nd Rodney Allen Berryhill. Case 32-CA-779 December 7, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On October 6, 1973, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Consolidated Freight- ways Corporation of Delaware, San Jose, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The name of Respondent appears as amended at the hearing. 2Respondent has excepted to certain credibility findings made by Ihe Administrative Law Judge. It is the Board's established policy not to over- rule an Adrmnistrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard DrV Wall Products. Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d (ir. 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The unfair labor practice charge in this case was filed on March 10, 1978, by Rodney Allen Berryhill. The Regional Director for Region 32 of the National Labor Relations Board, herein called the Board, who was acting on behalf of the General Counsel of the Board, is- sued on April 28, 1978, a complaint and notice of hearing against Consolidated Freightways Corporation of Dela- ware, herein called Respondent. The General Counsel's complaint alleges that Respon- dent has engaged in unfair labor practices within the mean- ing of Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. The General Counsel's complaint does not allege a violation of Section 8(a)(3) of the Act. On April 28, 1978, the Regional Director for Re- gion 32 issued a dismissal letter in which the 8(a)(3) portion of the unfair labor practice charge was dismissed. (See Resp. Exh. 2.) Respondent filed an answer to the com- plaint and denied the commission of the alleged unfair la- bor practices. The hearing was held before me on July 12, 1978, at San Jose, California. The time for filing briefs was set for Au- gu·i 16. 1978. Both counsel for the General Counsel and the attorney for Res:pondent filed briefs. F7''DINGS OF FACT 1. JURISDICTION Respondent is, and has been, at all times material herein, a Delaware corporation with its office and place of busi- ness located in Menlo Park, California. Respondent has been engaged in the business of operating truck and freight terminals at various locations in California, including San Jose, California. During the 12 months preceding the issuance of the General Counsel's complaint, Respondent derived gross revenues in excess of $50,000 from the shipment of freight from its California facilities directly to points located out- side the State of California. Upon the foregoing facts, and the entire record herein, I find that Resp, ndent has been, at all times material herein, an employer engaged in commerce and in a business af- fecting commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It was admitted in the findings that Freight, Construc- tion, General Drivers, Warehousemen and Helpers Union, Local 287, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Based on the findings, and the entire record in this case, I find that fact to be so. III T1HE ALL.EGED UNFAIR LABOR PRACTICES A. The Witnesses In alphabetical order, the following persons appeared as witnesses at the hearing in this proceeding: Garry R. Brotherton is the terminal manager at Respondent's San Jose, California, facility; Ralph Rodriguez-Berriz is the al- ternate union steward and a truckdriver for Respondent at the San Jose terminal; and Robert Sandoval is the union shop steward and a truckdriver for Respondent at the San Jose terminal. 648 CONSOLIDATED FREIGHTWAYS B. The Background Events The principal issues in this case pertain to what was said regarding Rodney Allen Berryhill during a meeting on No- vember 18, 1977, among Terminal Manager Brotherton, Shop Steward Sandoval, Alternate Steward Rodriguez-Ber- riz, and Union Business Representative Paul Duncan. However, in order to understand the context in which Ber- ryhill was discussed on November 18, 1977, it is helpful to note briefly some of the background events. There is a collective-bargaining agreement between Re- spondent and the Union which covers the employees at the San Jose terminal. The employees at Respondent's Hay- ward, California, terminal are represented by Local 70 of the Teamsters Union. Shop Steward Sandoval described the labor relations be- tween Respondent and the Union at the San Jose facility as "very good." Many problems had been settled or re- solved successfully between the stewards and the terminal manager. Between May 1977, when Garry Brotherton be- came the terminal manager at San Jose, and the time of the hearing in this proceeding on July 12, 1978, there had been only five to seven grievances filed at San Jose, which had reached the Joint Council level of the contractual griev- ance procedure. Between May and November 18, 1977, there had been only two such grievances to rise to that level. One of those grievances was filed by Berryhill, who had worked on three occasions for brief periods of time at Re- spondent's San Jose terminal, where his father is also em- ployed. Among the provisions of the collective-bargaining agreement is one which provides that a casual employee would have to work 20 days within a 60-day time period at a given location to acquire seniority with the Company. The nature of Berryhill's grievance contention was that he should be given seniority status with Respondent at the San Jose terminal. According to Sandoval, the Company's position on Berryhill's grievance was that the Company did not want to hire relatives at the same terminal, since Berryhill's father also worked for Respondent at that facil- ity. On November 16, 1977, Berryhill's grievance, which had been filed In August 1977, was heard before the Joint Western Conference in Los Angeles, California. At that time, the panel of the Joint Western Conference ruled in favor of the Company with regard to Berryhill's grievance. After the panel had rendered its decision late in the af- ternoon, there was a conversation in the hotel hallway at which the following persons were present: Charles Dick- man, labor relations manager of Respondent; Paul Dun- can, business agent of the Union; Chuck Mack, secretary- treasurer of Teamsters Local 70; Manny Joseph, secretary- treasurer of Teamsters Local 468; and Shop Steward San- doval. Labor Relations Manager Dickman asked Sandoval how Berryhill was as a worker. Sandoval said that Berryhill was a young man and a good worker. Sandoval pointed out that Berryhill must be good, because the Company had utilized him on a number of days and on a number of different times during the year. Dickman then stated that he felt that Berryhill had got "a bad decision." Dickman said that he would try to do everything that he could to secure a job for Berryhill at the Hayward terminal. Dickman further stated that he would have to talk with the terminal manager in Hayward, and, after that, Dickman would contact Business Agent Duncan and see what they) could work out. The findings of fact in this section are based on Sandoval's credited testimony. C. The Meeting on November 18, 1977 On November 18, 1977, between 8 and 8:30 a.m., there was a meeting in Terminal Manager Brotherton's office at the San Jose facility. Those present in the office were: Ter- minal Manager Brotherton, Business Agent Duncan, Shop Steward Sandoval, and Alternate Steward Rodriguez-Ber- nz. The meeting was held at the request of Sandoval, who had asked Brotherton that morning if they could have some time with him to discuss the change of operations and the Berryhill case. Brotherton agreed to that request, and granted them the time. The change in operations re- fered to Respondent's opening of a new terminal in Sali- nas, California. and the fact that some employees of Re- spondent at the San Jose facility were being moved to the new terminal at Salinas. During his direct examination by the counsel for the General Counsel, Sandoval related the following account of what was said at the meeting on November 18, 1977, with regard to Berryhill: Q. Tell us as best as you recall what was said on this subject. A. Well, Mr. Brotherton asked me the outcome of the decision, and I told him that the panel had ruled in the company's favor. He says, Well, and--And then I went further and I told him that we, myself and Paul Duncan, had a dis- cussion with Chuck Dickman, and I let him know what our discussion took place that Mr. Dickman had said that he would try and secure and see what he could do to obtain a job for Rod Berryhill in the Hay- ward terminal. At this time then, Mr. Brotherton responded that if he had anything to do with it, that he would prevent Mr. Berryhill getting a job in San Jose or in Hayward, that he would get in contact with the terminal manag- er of Hayward. Then I asked him why did-I said, Why do you feel like this against this young man? He says, Well, I just didn't like the procedure that he took in trying to secure a job for himself. Q. Do you recall if there was anything else said on the subject of Berryhil!'s situation? A. Well, Mr. Duncan asked him a question too, and so did Ralph Rodriguez-Berriz. I terminated ask- ing questions. During cross-examination by the attorney for Respon- dent, Sandoval omitted from his recital of the conversation that Brotherton had inquired about the outcome of Berryhill's grievance. However, during redirect examina- 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion by the counsel for the General Counsel, Sandoval's recollection was refreshed by reference to his pretrial affi- davit and he testified that Brotherton had asked what had occurred with regard to Berryhill's grievance. The foregoing findings of fact in this section have been based on the credited testimony of Sandoval, after consid- ering the demeanor of the witnesses. Before accepting Sandoval's account of what took place at the meeting, I reviewed Sandoval's pretrial affidavit, which he had given on March 21, 1978, before John D. Meakin, an agent for Region 32. Attached to that affidavit was a one-page hand- written statement which Sandoval had made earlier. The affidavit and attachment were introduced into evidence as Respondent's Exhibit 1. After reviewing the contents of the affidavit and the attachment, I find that they support the testimony which Sandoval gave at the hearing. Of course, I have read and considered the versions of the November 18, 1977 meeting which were related by the other two witnesses-Rodriguez-Berriz and Brotherton. Some support for Sandoval's version is also found in the testimony offered by Rodriguez-Berriz. He candidly ac- knowledged that he could not relate the exact words that were said at the meeting, but he offered his best recollec- tion. For example, during his direct examination by the counsel for the General Counsel, Rodriguez-Berriz indi- cated that Brotherton's initial remarks regarding Berryhill at the meeting were, "If I have anything to say about it, he won't work for CF in San Jose or in Hayward." Similarly, the other remarks which Rodriguez-Berriz attributed to Brotherton at that meeting were substantially similar dur- ing both his direct examination and his cross-examination, but with minor variations. For example, Rodriguez-Berriz stated during direct examination that Brotherton said, "I just didn't like the way he went about it." During cross- examination by the attorney for Respondent, Rodriguez- Berriz gave his recollection of what Brotherton said at one point as follows, "I don't think he went about it the right way, or something like that. I don't feel he went about it the right way." With regard to Brotherton's last comment about Berry- hill at the meeting, Rodriguez-Berriz stated during cross- examination that Brotherton said "something like: I'll call somebody in Hayward, or if I have to make a call to some- body in Hayward. I don't know who the individual was. I can't recall his name." The fact that both Sandoval and Rodriguez-Berriz were employees of Respondent at the time that they testified on July 12, 1978, has also been considered in accordance with the Board's decisions in Georgia Rug Mill, 131 NLRB 1304 (1961); Gold Standard Enterprises, Inc., et al., 234 NLRB 618, 619 (1978). The fourth person who was present at the November 18, 1977, meeting was Business Agent Paul Duncan. Counsel for the General Counsel stated for the record that the rea- son Duncan did not testify at the hearing in this proceed- ing was that Duncan was on vacation at that point in time. Respondent stipulated to the fact that Duncan was on va- cation at the time of the hearing. In these circumstances, it would not be appropriate to draw an adverse inference based on the fact that Duncan did not testify. By accepting the version to which Sandoval testified, it necessarily follows that I have not accepted the different version related by Brotherton in his testimony. I was per- suaded by Sandoval's testimony that he was relating the accurate version of these events. Accordingly, I have credited Sandoval's testimony, and I have relied upon it extensively throughout this Decision. Although I have read and considered Brotherton's testimony, I found Sandoval's testimony to be more credible and reliable, as explained above, and, therefore, I have based the findings of fact upon Sandoval's account of these events. D. Conclusions In Dover Garage Section II, Inc., 237 NLRB No. 150 (1978), the Board once again referred to the legal principle enunciated by the court in its opinion in Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 99 (7th Cir. 1959). With re- gard to the court's decision, the Board stated: In the latter case, the court stated that "[n]o proof of coercive intent or effect is necessary under Section 8(a)(l) of the Act, the test being 'whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act.' " Id. at 99. We have recently reaffirmed this principle in Continental Chemical Com- pany, 232 NLRB 705 (1977), and American Lumber Sales, Inc., 229 NLRB 414 (1977), and see no reason to question its validity here. Accordingly, we find that Quillman's threat to terminate Zuss if he engaged in any further protests of any kind relating to the dis- patch procedure violated Section 8(a)(l) of the Act. In addition, see the Board's decision in Munro Enterpris- es, Inc., 210 NLRB 403 (1974), where the Board also cited the foregoing principle from the court's Time-O-Matic opinion. Based on the credited testimony, I conclude that Brotherton's remarks at the November 18, 1977, meeting concerning Berryhill had reference to the filing of the grievance by Berryhill. This is shown by the context in which the remarks were made. I further conclude that Brotherton's remarks do not pertain to the circumventing of the hiring hall provisions of the collective-bargaining agreement. Accordingly, I conclude that Brotherton made a threat on November 18, 1977, to prevent an employee from obtaining employment at Respondent's San Jose and Hayward terminals because the employee had filed a griev- ance against Respondent. While Sandoval and Rodriguez-Berriz were the shop steward and alternate steward for the Union, respectively, they were also employees of Respondent when they heard Brotherton's threat. I have considered and weighed the fact that the labor relations between Respondent and the Union concerning the San Jose terminal had been "very good." Additionally, I have also given consideration to the fact that the remarks were made during a meeting between Respondent's repre- sentative, Brotherton, and the Union's three representa- tives. In his brief, the attorney for Respondent set forth an analysis of what he viewed to be the rationale of the Board 650 CONSOLIDATED FREIGHTWAYS for finding certain statements to be coercive under Section 8(a)(1) of the Act. The attorney for Respondent urges: But once the union is firmly entrenched, and once the emnloyer is no longer dealing directly with the employees, but is dealing with the union as a represen- tative of the employees, the rationale for the strict rules disappears and the employer, as well as the union, should be given much more leeway in what they can say, especially in bargaining and grievance resolution. Encouragement of collective bargaining and amica- ble resolution of grievances are the heart of the Act: its purposes are surely not furthered by unnecessarily muzzling the parties to this process. Among other cases, which I have also considered, the attorney for Respondent principally cites the court's opin- ion in N.L.R.B. v. Frontier Homes Corporation, 371 F.2d 974 (8th Cir. 1967). During one of the 24 bargaining ses- sions between the company and the union involved therein, the plant manager related a story about his former employer. In the Board's view, the plant manager's re- marks were violative of Section 8(a)(1) of the Act. The court did not agree. The court succinctly stated the facts as to what took place as follows (371 F.2d at 976-977): At the bargaining session held December 26, 1963, Plant Manager Davidson related a story about his for- mer employer, the Ohio Match Company, and that Company's Lumber Division. Davidson testified about this matter, as follows: . . . I told them how the lumber division had a background of labor trouble, a six months' strike. It was quite a different contrast to what we had expe- rienced at Ohio Match where we had a mature rela- tionship and where we used to negotiate a contract in three or four days, but at Idaho, where I wasn't working or had any contract, I had understood that they had sold the Company to a competitor and the plant was shut down for a little better than 30 days, and following the shutdown, the plant was reopened by the competitor, and it was my understanding that they hired in employees who were less obstre- perous, was the information I had on it. This discussion was in a context, and the context was the desirability of Frontier at Falls City to try to develop the same type of mature relationship we had at Ohio Match, as opposed to some of these other instances that had been occurring in other in- dustries in other plants, the need for us to try to get together and work in harmony. At the bargaining session held January 11, 1964, Davidson was heard to remark, "Gosh, if we had this thing settled the first of the year, we wouldn't have this trouble now." The Board majority concluded from this testimony that the story and the remark carried the "aroma of coercion" and interfered with the employees' rights under the National Labor Relations Act in violation of § 8(aXI). They argue here that there is substantial evidence to support this conclusion. We cannot agree. The court concluded with respect to that aspect of the case as follows (371 F.2d at 977 978): "From the innocu- ous nature of the statement, the parties involved, the num- ber of meetings, and the history of the past relations, we do not believe this story and statement had a coercive effect upon the employee representatives. Indeed, we believe the 'aroma of coercion' to be so faint that it cannot alone sup- port the Board's finding of a § 8 (aXI) violation." Unlike the innocuous story and statement present in the Frontier Homes case, I conclude that Brotherton made a threat of retaliatory action against an employee for filing a grievance. I further conclude that such a threat is not ex- empt from an unfair labor practice finding, because the threat is made in the context of a meeting between Respon- dent's representatives and the Union's representatives, where two of those union representatives are also employ- ees of Respondent. Finally, I conclude that Brotherton's remarks were not merely an expression of opinion, and that those remarks fall outside the protection of Section 8(c) of the Act. In these circumstances, I conclude that Brotherton's threat violated Section 8(aXl) of the Act, and that a remedial order is appropriate. Amoco Oil Company, Marketing & Transporation Division, 223 NLRB 946 (1976); Texbernr Container Corporation, 217 NLRB 58 (1975). CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening, in the presence of employees, to pre- vent an employee from obtaining employment at its San Jose and Hayward, California, terminals because the em- ployee had filed a grievance against it, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The unfair labor practices set forth above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since I have found that Respondent has engaged in un- fair labor practices within the meaning of Section 8(aX I) of the Act, I shall recommend that Respondent be ordered to cease and desist from engaging in those unfair labor prac- tices. I shall also recommend that Respondent take certain af- firmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER' The Respondent, Consolidated Freightways Corporation of Delaware, San Jose, California, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Threatening, in the presence of employees, to pre- vent an employee from obtaining employment at Respon- dent's San Jose and Hayward, California, terminals be- cause the employee has filed a grievance against Respondent. (b) In any like or related manner interfering with, re- straining or coercing its employees in the exercise of the rights guaranteed to them by the Act. 2. Take the following affirmative action which is deemed necessary in order to effectuate the policies of the Act: (a) Post at its San Jose, California, facility copies of the attached notice marked "Appendix." 2 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 32, after being duly signed by Respondent's represen- In the event that no exceptions are filed, as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recom- mended Order herein shall, as provided in Sec. 102.48 of the Board's Rules and Regulations. be adopted by the Board and shall become its findings. conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 2 In the event that 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." tative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 32, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, in the presence of our em- ployees, to prevent an employee from obtaining em- ployment at our San Jose and Hayward, California, terminals because the employee has filed a grievance against us. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to them by the National La- bor Relations Act, as amended. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELA- WARE 652