Roadway Express, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roadway Express, Inc. and Lehigh Valley Chapter Teamsters for a Democratic Union. Case 4- CA- 11594 March 1, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On November 4, 1981, Administrative Law Judge George F. McInerny issued the attached De- cision 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, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 2 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, Roadway Ex- press, Inc., Allentown, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. ' Contrary to the statement of the Administrative L aw Judge in In 2 of his Decision, we agree with Respondent that the record established that Respondent had instituted the use of production cards at its Allen- town facility prior to the events in the instant case However, this missta- tement by the Administrative Law Judge in no way affects his finding, with which we agree, that employee Madouse, in posting and distributing materials protesting Respondent's use of production cards at its Tanners- ville facility, was engaged in protected concerted activity Employees have no less interest in or concern about a work rule that has been im- posed than one that is being considered. In the former case, employees may legitimately protest the use and application of the rule and seek its rescission, and here Madouse's actions were clearly designed to make his fellow Allentown employees aware that such a legitimate protest might be appropriate. We do not adopt, however, the Administrative Law Judge's specula- tive and irrelevant comments regarding the effects of the activities of the Teamsters for a Democratic Union on the stability of the bargaining rela- tionship between Respondent and the Teamsters Union 2 The Administrative Law Judge inadvertently failed to conform the notice to the Order. Accordingly, we have substituted the attached notice for that of the Administrative l.aw Judge 260 NLRB No. 78 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR REI ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL. NOT interfere with our employees' exercise of protected concerted activities by removing literature posted on bulletin boards or placed on tables in our dispatch room in Al- lentown, Pennsylvania. WE WIL.L NOT impose a no-solicitation/no- distribution rule which discourages employees from engaging in protected concerted activi- ties. WE WI.I. NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the Act. WtE Wl.l_ rescind the no-solicitation/no-dis- tribution rule imposed on September 16, 1980. ROADWAY EXPRESS, INC. DECISION S'rAIIM1-Nr OF ITHE CASE GF.ORGI F. MCINERN\, Administrative Law Judge: Based on a charge filed on November 13, 1980, by Lehigh Valley Chapter Teamsters for a Democratic Union, the Acting Regional Director for Region 4 of the National Labor Relations Board, herein referred to as the Board, issued a complaint on December 30, 1980, al- leging that Roadway Express, Inc., herein referred to as the Company or Respondent, had violated Section 8(a)(l) of the National Labor Relations Act, as amended, 29 U.S.C. §151, et seq., herein referred to as the Act, by removing material posted by one of its employees on a bulletin board, and by promulgating an invalid no-solici- tation rule. Respondent filed an answer to the complaint denying the commission of any unfair labor practices. Pursuant to notice contained in said complaint a hear- ing was held before me in Allentown, Pennsylvania, on August 26, 1981, at which all parties were represented, and were given the opportunity to present testimony and documentary evidence, to examine and cross-examine witnesses, and to argue orally.' After the conclusion of the hearing, the General Counsel and Respondent filed briefs which have been carefully considered. ' The General Counsel has moved to amend the transcript of this hear- ing in certain respects In the ahbence of objection, the motion is allowed. 570 ROADWAY EXPRESS, INC. Based on the entire record, including my observation of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT 1. JURISDICTION Roadway Express, Inc., is a Delaware corporation en- gaged in the trucking industry as a common carrier haul- ing freight in interstate commerce. It maintains a termi- nal in Allentown, Pennsylvania, which is the location in- volved here. The complaint alleges, the answer admits, and I find that Roadway Express, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALI.EGED UNFAIR I ABOR PRACTICES At the opening of the hearing all parties stipulated that a no-solicitation rule promulgated by the Company was overly broad. The rule, which was posted at the Allen- town terminal on September 16, 1980, over the signature of Terminal Manager F. R. Tomb stated that "the distri- bution and/or posting of non-authorized, non-company literature or possession of same on company property is strictly forbidden" and that "[a]ny employee who vio- lates these instructions will be subject to disciplinary action up to and including immediate discharge." The posting of this notice reflected Respondent's con- cern over a situation in which some of its employees were interested in an organization known as Lehigh Valley Chapter Teamsters for a Democratic Union (TDU), which is the Charging Party herein. Respond- ent's employees have been represented for some time by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters), and worked under the terms of the National Master Freight Agreement and the Central Pennsylvania Over-the-Road and Local Cartage Supplemental Agreement. Under arti- cle 19, section 2, the Company was required to maintain a bulletin board at each of its terminals for the use of the Teamsters. At Allentown the Company maintained a bulletin board for the Teamsters, as well as other boards for company use in a small room where drivers reported before and after their assignments. The room contained a windowed partition looking into the office area of the terminal, where drivers received their orders and report- ed to the dispatcher. In addition to the dispatch window and the bulletin boards, the room contained a table where drivers could sort out paperwork, and an unat- tended snackbar where employees could buy candy, cookies, and such. The room was also used without op- position from management, as a break room or a lunch- room by employees. There was some question about the use of the bulletin boards. It was agreed by those who testified that a social organization of Respondent's employees called the Rex Club used the bulletin boards to post its bylaws and to advertise its social activities. On the question of posting of other materials the witnesses for the General Counsel maintained that materials offering articles for sale were posted without hindrance from management, and a notice for a church program in which employee Gary Heintzelman was interested remained posted for some time. On the other hand, Terminal Manager Ray Tomb stated that he frequently checked the status of the bulle- tin boards and removed any notices which did not have to do with the Teamsters or the Rex Club. I have some doubt about this, because Tomb admitted his visits to the room where the bulletin boards were located were infre- quent, and also because he admitted that materials circu- lated by TDU in an election campaign the previous year were allowed to remain posted. I find that, while Tomb may have made efforts from time to time to reduce clut- ter on the bulletin boards, there was no firm practice or policy restricting the use of the boards to the Teamsters or the Rex Club materials. In the fall of 1980 the TDU was concerned about a new practice instituted by Respondent in some of its ter- minals. This required employees to fill out "production cards" on work assignments. The cards were then tabu- lated and used to measure productivity (and, presumably, to increase productivity by forcing employees to work harder).2 The TDU was upset and concerned over this action by the Company, and even more concerned over what was perceived as lack of effective protest of this action by the Teamsters, Douglas Madouse, an employee of the Company, was also a member of the Lehigh Valley Chapter of TDU. At a meeting of this organization in September 1980, Ma- douse picked up a poster containing protests by "North- western Pennsylvania TDU" against the Company's ac- tions at its Tannersville facility together with copies of a TDU newspaper entitled "Convoy Dispatch" which also contained articles critical of the Company, particularly the imposition of the production cards. On the morning of September 15, Madouse posted the poster on a bulle- tin board occupied by safety posters. He testified that he did not cover anything else with this item. He placed copies of the newspaper on the table in the dispatch room, then went out for a few moments. When he re- turned he found that someone had taken a page from one of the newspapers, a page dealing specifically with Roadway Express and the production cards, and posted it on the bulletin board reserved for the Teamsters and the Rex Club notices. Madouse did not disturb this, but left on his route for the day. When Madouse returned he noticed that the materials which had been posted that morning, as well as the newspapers, were gone. He asked the dispatcher what had happened and the dispatcher replied that Tomb had removed them. On the next day Tomb posted the new rule mentioned above, and since that time Madouse has neither distribut- ed nor posted TDU literature. Since Respondent has admitted that the September 16 notice written and posted by Tomb is unlawfully broad, and a reading of the notice certainly confirms this, I will not discuss that aspect of the complaint, but will turn to the alleged violation of Section 8(a)(l) of the Act based z There is no indication in the record that the Company Intended im- plementing this sytem at the Allenlown terminal 571 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on Tomb's removal of the TDU literature on September 15. The Company is concerned about the internal conflict within the Teamsters. This is understandable. The Com- pany negotiates with the Teamsters for a collective-bar- gaining agreement which, however costly in terms of economics and administration, should assure the Compa- ny a certain stability in labor relations during its term. The activities of TDU, as shown by its literature intro- duced in the record of this case, would tend to interfere with this stable relationship by promoting a greater mili- tancy on the part of the Teamsters. The Company argues that since Madouse, a single em- ployee, posted the offending notices, he was not engaged in concerted activity. However, Madouse testified that he was a member of the Lehigh Valley Chapter of TDU, and that he had obtained the materials he posted at a TDU meeting. The materials contained matters of inter- est to Madouse, and his act of posting and leaving the newspapers clearly shows that he wanted others to be aware of the content.3 I find that Madouse, in posting and distributing these materials, was engaged in concert- ed activity for the information and edification of his fellow employees as well as himself. Respondent also argues that the subject matter of the literature "bore no demonstrated relevance to the Re- spondent's Allentown employees." I disagree. The litera- ture is militant and strident in tone, but it does describe the implementation of new production standards at Re- spondent's Tannersville, Pennsylvania, facility. Tanners- ville is approximately 45-50 miles north of Allentown. I think any prudent driver at Allentown could deduce that, if something works out for the Company at Tan- nersville, it could and would be applied elsewhere, in- cluding at Allentown. It thus does not appear to me that the issue is so remote from the legitimate work interests of the Allentown employees as to stand in the category of solicitations from a fraternal lodge. While, as I have noted, the literature is militant in tone, a careful reading shows that there is no solicitation contained therein which could be viewed as a call for violence, illegal actions, or actions in violation of the contract. Indeed employees are urged to press grievances under the contract to their ultimate disposition. Then, if a deadlock occurred at the National level, the Union, as the contract provides, may take economic action, includ- ing, presumably, a strike. In view of this discussion, I find that Madouse was en- gaged on September 15 in protected concerted activity. This activity was connected with working conditions at other Roadway terminals, but could be viewed as likely to spread to Allentown. The literature posted was not in- flammatory nor would it tend to lead to unlawful ac- tions. In this connection the record is fairly clear that the Company had, up to September 16, no rule about posting of materials. I credit the testimony of Madouse, Barry Smith, and Heintzelman that other materials were posted on the bulletin boards for varying lengths of time with- out hindrance. I The fact that the poster may have come from another subdivision of TDU does not put that item in a different category. I therefore find that by removing the literature from the bulletin boards, and from the dispatch room, Re- spondent has violated Section 8(a)(l) of the Act.4 Trans- con Lines, 235 NLRB 1163 (1978); Illinois Bell Telephone Company, 255 NLRB 380 (1981). It is clear, also, that the no-distribution no-solicitation rule promulgated by Respondent is invalid as overly broad, and is a further violation of Section 8(a)(1) of the Act. Pedro's Inc., d/b/a Pedro's Restaurant, 246 NLRB 567 (1979). 111. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(l), I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCL USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaing of Section 2(6) and (7) of the Act. 2. By removing literature posted on its premises by an employee engaged in protected concerted activity, Re- spondent has violated Section 8(a)(l) of the Act. 3. By promulgating a no-distribution no-solicitation rule which is overly borad, Respondent has violated Sec- tion 8(a)(1) of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby recom- mend the following: ORDER s The Respondent, Roadway Express, Inc., Allentown, Pennsylvania, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Interfering with the protected concerted activities of its employees by removing literature posted on bulle- tin boards or placed on tables in its dispatch room in Al- lentown, Pennsylvania. (b) Promulgating no-distribution no-solicitation rules in order to discourage employees from engaging in protect- ed concerted activities. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Immediately rescind the no-distribution no-solicita- tion rule promulgated on September 16, 1980. 4 Respondent's argument that TDU lacks "privily" is really irrelevant since it is not the rights of TDU which are at issue here, but the rights of Respondent's employees 5 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 572 ROADWAY EXPRESS. INC (b) Post at its place of business in Allentown, Pennsyl- vania, copies of the attached notice marked "Appen- dix. " 6 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representative, shall be s In the ev cut this Order i, enforced h' a Judgment of a Unlited States Court of Appeal'. the words in the noticc reading "P'oled hby Order of the National L.abor Relatiljon B1oard" Shall read "iosted Pursuant to a Judgment of the United States (Court of Appeal, IFnfiircing an Order of the National labohr Relatin,, HBo rd" posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to the employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 573