Kline, H. O., Transportation, Inc.

H. O. KLINE TRANSPORTATION, INC. 299 H. O. Kline Transportation, Inc. and Thomas J. physical altercation occurred between Kline and Ventura Ventura. Case 4-CA-9722 on October 13. Upon the record as a whole, including my observation November 16, 1981 of the witnesses, briefs and arguments of counsel, I DECISION AND ORDER hereby make the following: BY MEMBERS FANNING, JENKINS, AND FINDINGS OF FACT AMD CONCLUSIONS OF LAW ZIMMERMAN I. JURISDICTION On June 11, 1979, Administrative Law Judge H. O. Kline Transportation, Inc., is a class three James L. Rose issued the attached Decision in this common carrier, meaning that its gross volume of busi- proceeding. Thereafter, the General Counsel filed ness is less than one-half million dollars a year. It does exceptions and a supporting brief, the Charging business in a four-state area including Delaware, New Party filed a brief in support of the General Coun- Jersey, Pennsylvania, and Maryland and is operated by a sel's exceptions, and the Respondent filed a brief in father and two sons. opposition to the General Counsel's exceptions. During the year preceding issuance of the complaint Pursuant to the provisions of Section 3(b) of the herein the Respondent received more than $50,000 for National Labor Relations Act, as amended, the Na- transporting goods and materials across state lines. The tional Labor Relations Board has delegated its au- Respondent admits, and I find, that it is an employer en- thority in this proceeding to a three-member panel. gaged in interstate commerce within the meaning of Sec- The Board has considered the record and the at- tion 2(2), (6), and (7) of the Act. tached decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and II. THE LABOR ORGANIZATION INVOLVED conclusions of the Administrative Law Judge and International Brotherhood of Teamsters, Chauffeurs, to adopt his recommended Order. Warehousemen and Helpers of America, Local 326 (herein the Union), is admitted to be, and I find is, a ORDER labor organization within the meaning of Section 2(5) of Pursuant to Section 10(c) of the National Labor the Act. Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended II1. THE ALLEGED UNFAIR LABOR PRACTICES Order of the Administrative Law Judge and A. The Facts hereby orders that the complaint be, and it hereby is, dismissed in its entirety. For a number of years the Union has represented a unit of the Respondent's drivers and warehousemen. The DECISION Respondent and the Union have been parties to a series of collective-bargaining agreements including the one STATEMENT OF THE CASE which was in effect during the material time of the JAMES L. ROSE, Administrative Law Judge: This events herein. matter was heard before me in Philadelphia, Pennsylva- Ventura has been the shop steward since February nia, on May 7, 1979. In essence, the General Counsel's 1976, and as such he has been involved in meeting with complaint alleges that on October 13, 1978,' Joseph F. the owners of the Respondent-H. O. Kline and his sons Kline, vice president of the Respondent, threatened with Bernard and Joseph. Ventura has discussed various mat- physical assault Thomas J. Ventura, the Charging Party, ters of dispute arising under the contract and has formal- because he had engaged in protected activity and there- ly processed grievances. after in fact assaulted him,2 both in violation of Section According to Ventura, and generally undisputed by 8(aXl) of the National Labor Relations Act, as amended, the Respondent, on October 5, H. O. Kline was observed 29 U.S.C. §151, et seq. unloading a truck as was Bernard on October 12. Then The Respondent generally denied that it has commit- in the late afternoon on October 13, when Ventura re- ted any unfair labor practices, although admitting that a turned to the Company's premises from making a deliv- 'All drates are in 1978 unless otherwise indicated, ery, Joseph told him to finish unloading a truck, which Ventura claims that as a result of the assault he has been totally dis- Ventura claims Joseph had been doing. abled from gainful employment, a claim which the Respondent disputes. Joseph denied that he did any unloading on October The General Counsel contends that Ventura's disability resulting from an 13, but does admit that when Ventura returned he was, unlawful assault would require a backpay remedy. But because the nature and extent of the disability, if any, will involve medical testimony and, in fact, standing on the dock with papers in his hands. presumably, the amount of backpay would be affected by any workmen's In any event, according to Ventura he talked to compensation payments, the parties stipulated that the backpay issues Joseph about the events of October 5 and 12 as well as should be deferred to a compliance proceeding. While Ventura's entitle- ment to workmen's compensation has not been litigated, the compensa- his contention that Kline was doing bargaining unit work tion insurance carrier has apparently begun making some kind of disabil- ity payments. 259 NLRB No. 44 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that day. For management to do such work is a breach B. Analysis and Concluding Findings of contract. 3 Ventura contends that when he told Joseph Kline that The principal event upon which the General Counsel the Company had been breaching the contract, when he bases his complaint is, pure and simply, a fight between or the other owners did bargaining unit work, that Kline the two individuals who undisputably did not get along6 got upset and said, "If I fucked up the Company he and both of whom are aggressive. Even if Kline struck would fuck me up." the first blow, which appears to be the case although not After this Ventura went to the drivers' room, filled totally free from doubt, such is not necessarily an unfair out a report, called his wife, punched his timecard, and labor practice. Certainly to threaten an employee with proceeded to leave. On leaving he passed Kline who physical assault because he has engaged in protected ac- asked "if everything was okay." Ventura said yes, except tivity, such as processing grievances, is a violation of that he did not appreciate Kline's threat. A few words Section 8(a)(1). Jones Motor Company, a Division of Alle- were exchanged, then, according to Ventura, Kline gheny Corporation, 202 NLRB 123 (1973). So is an actual picked him up, "slammed" him against the wall, and hit assault. Greyhound Taxi Co., Inc., 234 NLRB 865 (1978). and kicked him. And after a few minutes Kline told Ven- But the fact that a management official scuffles with a tura to "get the hell off the premises." 4 union steward does not of itself prove a violation of the Kline contends that from the time Ventura returned to Act. the dock in the afternoon until the physical altercation, a It does appear from the testimony of both Ventura and period of about 45 minutes, on three occasions Ventura Kline that Ventura had advanced his contention that brought up the subject of supervisors doing bargaining managers were violating the contract by doing bargain- unit work, and kept "picking" at him. And according to ing unit work. He was privileged to do this whether he Kline, Ventura followed him around the dock in an abra- sive manner, badgering him about being on the dock and observing these events as he perceived them, to tell like. Kline testified that he told Ventura that if he observing these events as he perceived them, to tell wanted to file a grievance to do so but otherwise "to get Kline and, on receiving a negative answer, he certainly off my back," and that he was "screwing up the Compa- was privileged to file a grievance. But he was not neces- ny." (Kline denies making the statement attributed to sarily privileged to spend 45 minutes off-and-on "badger- him by Ventura quoted above.) ing" Kline. And I find that this is precisely what Ven- In general agreement with Ventura, Kline contends tura did. Such was Kline's generally credible testimony, that when Ventura came out of the drivers' office he said undenied by Ventura. Even so, I do not believe that such something about not liking to be threatened. Then, as behavior caused Kline to threaten Ventura or be the ag- Kline turned to walk away, "the man came after me." gressor in the fight. Kline shoved Ventura away because, he stated, he was It is noted that both Ventura and Kline recounted the afraid for his own physical safety-that Ventura has a facts in what appeared to be the most favorable to their reputation for aggressiveness and is known to have a particular cause. Nevertheless, I found Kline more permit to carry a gun. In any event, they scuffled a bit straightforward and credible than Ventura. For instance, and in a few seconds the fight was over. it appeared that Kline was willing to make admissions on Finally, Kline contends that Ventura did not look in- material matters which were not in his interest. He did jured as a result of the fight nor did he make any com- not deny that he was first to make physical contact. ment then about being injured. I do not believe, as Ventura would have me, that he Mary Ellen Shevchuck is a billing clerk for the Re- was blameless-that Kline attacked him unprovoked. spondent who comes to work at or about 4:45 to 5 p.m. Nor do I believe Ventura's version of the fight-that While she denied observing the beginning of the fight, Kline "picked me up and sort of slammed me against the she did see Kline and Ventura scuffling, at first thinking wall." It may be that Kline's act of pushing Ventura was they were playing and then concluding that they were in the first touch, but such does not exonerate Ventura. fact fighting. The other secretary went to the door and Indeed, I believe he provoked the confrontation. From said, "Joe, Tommy, stop, stop it."5 Ventura's testimony that just prior to the fight Kline 3 Indeed, subsequent to the events here, these alleged breaches of con- asked him if "everything was okay" does not suggest a tract were resolved through the grievance procedure. The parties agreed disposition on Kline's part to start a fight. that I day of pay for an employee would be paid for October 12, inas- I do not find persuasive the General Counsel's argu- much as there was a member of the bargaining unit on layoff status on ment that by that day, but since no bargaining unit people were on layoff on October 5. the grievance as to that day was without merit. Apparently, Ventura's ed Kline, which would have been permissible under the contention with regard to October 13 was not processed as a grievance. contract, the Respondent thereby admitted that Ventura ' There is no allegation that Ventura was discharged. He is still consid- did not hit Kline. A company does not have to discharge ered an employee but has not worked since October 13 because of the injuries he claims to have suffered. someone every time cause is given. There are here al- 5 Ventura contends that one secretary screamed, "Stop it Joe, stop it," ready two matters in litigation involving this fight, and which, of course, implies that Kline was the aggressor. On this point I to have discharged Ventura would just invite another. credit Shevchuck over Ventura. Inasmuch as she was not participating in the fight, her observation of the events would figure to be more accurate. Finally, the issue is not whether Ventura assaulted Kline, Further, she is generally a disinterested witness and has little stake in the outcome of this matter, whereas Ventura's interest in a favorable result 6 Undenied is the testimony of Union Business Agent Michael J. Cia- here is potentially beneficial also to his workmen's compensation claim. battoni that the Klines had complained about Ventura as shop steward Finally, Shevchuck's demeanor was more positive than Ventura's. and had asked be be removed because "they fell he was very petty." H. O. KLINE TRANSPORTATION, INC. 301 but whether Kline's actions against Ventura were caused ondly, what was said was said during the give-and-take by Ventura's protected activity. of Ventura badgering Kline, and did not imply a threat The General Counsel contends that I should infer of physical violence in violation of the Act. Kline started the fight from the fact that he is bigger Accordingly, I conclude the General Counsel has than Ventura and served in the Army in Vietnam. I am failed to prove by a preponderance of the credible evi- not persuaded that these facts prove that Kline was the dence that the Respondent threatened physical assault, or aggressor, particularly in view of Ventura's undenied ag- in fact physically assaulted Ventura in violation of the gressiveness. Act. I will recommend that the complaint be dismissed Ventura was not blameless, nor of course was Kline. in its entirety. But given the apparent personalities of the parties in- Upon the foregoing findings of fact, conclusions of volved and their relationship one with the other, I can law, the entire record in this matter, and pursuant to the not conclude that Kline started the fight because Ven- provisions of Section 10(c) of the Act, I hereby issue the tura sought to exercise the rights guaranteed employees following recommended: under Section 7 of the Act. As to the alleged threat, even if it occurred, the state- ORDER 7 ment from Kline to Ventura that "he would fuck me up" The complaint is hereby dismissed in its entirety. really does not mean much. The General Counsel con- tends that this was in the context of Ventura discussing In the event no exceptions are filed as provided by Sec. 102.46 of the the grievances and therefore amounted to a threat of Rules and Regulations of the National Labor Relations Board, the find- physical violence in violation of Section 8(a)(1). First, I ings, conclusions, and recommended Order herein shall, as provided in do not believe that Kline made the statement in the Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto words attributed to him. That is, I credit his denial. Sec- shall be deemed waived for all purposes.