Apa Warehouses, Inc /Sea Jet Trucking Corp.

A P A WAREHOUSES A P A Warehouses, Inc /Sea Jet Trucking Corpora tion/Affiliated Terminals Incorporated/Sea Jet Industries, Incorporated/Sea Jet Trucking and A P A Warehouses, Incorporated and Local 348, Warehouse Production Sales & Service Employees Union and the International Union of United Automobile and Agricultural Imple ment Workers of America, AFL-CIO Cases 29-CA-13151 29-CA-13150 29-CA-13199 29-CA-13232 29-CA-13280 and 29-CA- 13291 November 10, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 22 1988 Administrative Law Judge Raymond P Green issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge s rulings findings 1 and conclusions2 and to adopt the recommended Order as modified 3 i The Respondent has excepted to the judge s credibility finding that Augusto Diaz did not make the anti Semitic statements attributed to him by the Respondent The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear prepon derance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) The judge based his credibility resolution on four factors (1) the judge s observation of the demeanor of the witnesses (2) the incident at issue was attended by a good deal of shouting noise and confusion (3) the testimony of the Respondents three witnesses contained signifi cant inconsistencies and a portion of that testimony was elicited by a leading question and (4) the inconsistency in the Respondents position in this case and in Cases 29-RC-6836 29-RC-6841 and 29-RC-6844 re garding the termination of Diaz In the representation cases the Respond ent argued that Diaz was ineligible to vote because he had voluntarily quit his employment We find the second factor to be of minimal relevance to the credibility resolution in this case We further find contrary to the judge that the inconsistencies in the testimony of the Respondent s three witnesses are not significant and find their testimony to be substantially similar Fur ther we do not find that a portion of the testimony of one of the Re spondent s witnesses was elicited by a leading question We find howev er that the fourth factor is supported by the record Based on the validi ty of this factor as well as the judge s reliance on demeanor factors we cannot conclude that the judge s credibility resolution is contrary to the clear preponderance of the evidence Accordingly we affirm the finding 2 According to the credited testimony the Respondents owner Moskowitz told Diaz an unfair labor practice striker that the latter would never work again for the Respondent to which Diaz responded that Moskowitz was like Hitler Applying the test set forth in Clear Pine Mouldings 268 NLRB 1044 (1984) we conclude that under the cir cumstances Diaz statement did not reasonably tend to coerce or mtimi date Accordingly Diaz remark did not warrant his disqualification from reinstatement 3 We shall delete fn 5 of the judge s recommended Order because it is unnecessary and inaccurate When the Board adopts a judge s recom 627 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent A P A Warehouses Inc /Sea Jet Truck mg Corporation/Affiliated Terminals Incorporat ed/Sea Jet Industries Incorporated/Sea Jet Truck ing and A P A Warehouses Incorporated Brook lyn New York its officers agents successors and assigns shall take the action set forth in the Order as modified 1 Delete footnote 5 2 Substitute the attached notice for that of the administrative law judge mended Order a Respondent must provide the Regional Director with information concerning compliance within 20 days not 10 days We have substituted the attached notice to conform to the judge s rec ommended Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and lias ordered us to post and abide by this notice WE WILL NOT discharge or refuse to reinstate striking employees who offer to return to work unless such employees engage in misconduct which under the circumstances may reasonably tend to coerce or intimidate other employees in the exercise of their rights protected under the Act WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Augusto Diaz immediate and full reinstatement to his former job or if that job no longer exists to a substantially equivalent position without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge less any net interim earnings, plus interest WE WILL remove from our files any reference to the discharge of Augusto Diaz and WE WILL notify him that we have removed from our files any refer 291 NLRB No 94 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ence to his discharge and that the discharge will not be used against him in any way FINDINGS AND CONCLUSIONS I JURISDICTION A P A WAREHOUSES INC /SEA JET TRUCKING CORPORATION/AFFILIAT ED TERMINALS INCORPORATED/SEA JET INDUSTRIES INCORPORATED/ SEA JET TRUCKING AND A P A WAREHOUSES INCORPORATED Alison C Fairbanks and April Wexler Esqs for the Gen eral Counsel Sanford E Pollack, Esq (Pollack & Kirshenbaum P C) for the Respondents Eugene Eisner Esq (Eisner & Levy P C) for the U A W J Warren Mangan Esq (0 Connor & Mangan P C) for Local 348 DECISION STATEMENT OF THE CASE RAYMOND P GREEN Administrative Law Judge These cases were heard by me on February 16 and 17 and April 11 and 13 1988 i The charge in 29-CA-13151 was filed by Local 348 Warehouse Production Sales & Service Employees Union (Local 348) on July 28 1987 The charges in Cases 29-CA-13150 29-CA-13199 and 29-CA-13232 were filed by the International Union of United Automobile and Agricultural Implement Workers of America AFL-CIO (the UAW) respectively on July 28 August 31 and September 28 1987 (An amended charge in Case 29-CA-13232 was filed on November 9 1987) A consolidated complaint was issued on Novem ber 23 1987 Subsequently the UAW filed new charges in Cases 29-CA-13280 and 29-CA-13291 on November 12 and 18 1987 which were amended on December 12 and 17 1987 A consolidated complaint was issued concerning these charges on December 23 1987 Thereafter an order consolidating all the foregoing cases (together with Case 29-CA-13143) was issued on January 27 1988 The hearing commenced on February 16 1988 and it soon became evident that a settlement of all or part of the allegations might be possible Discussions continued on February 17 after which the cases were adjourned for further negotiations On April 11 1988 a partial set tlement was reached which thereafter was executed by the parties and approved by me Although resolving almost every allegation of the con solidated complaint the parties could not agree on one issue That issue was whether the Respondent unlawfully refused to reinstate striker Auguste, Diaz on an uncondi tional offer to return to work Respondent contends and Diaz denies that he was involved in making anti Semitic remarks on the picket line Based on the entire record in this case including my observation of the demeanor of the witnesses and after considering the beefs I make the following 1 At the hearing I granted the General Counsel s unopposed motion to sever Case 29-CA- 13143 from these proceedings At the hearing it was stipulated and I find that the Re spondent constitutes a single employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act I also conclude that the Unions involved are labor or ganizations within the meaning of Section 2(5) of the Act II OPERATIVE FACTS For many years Local 348 Warehouse Production Sales & Service Employees Union represented the Em ployer s warehouse employees The most recent contract between Local 348 and the Company expired in Septem ber 1987 In June and July 1987 three unions filed petitions for elections These were in Case 29-RC-6836 (by Local 11 International Brotherhood of Teamsters) Case 29-RC- 6841 Local 6 Amalgamated & Industrial Service Work ers Union) and Case 29-RC-6844 (by the UAW) There after hearings were held in relation to the representation cases in July 1987 and an election was eventually held The record indicates that Diaz was one of the employ ees who was very active in supporting the UAW and a strike was initiated by the UAW on Sunday November 8 1987 It was stipulated by all parties that this strike was an unfair labor practice strike On March 17 1988 an unconditional offer was made on behalf of the strikers to return to work In response the Company offered to reinstate all the strikers except for Diaz As noted above the strike began on November 8 The evidence shows that on the first day the Respondent by Abie Moskowitz (one of the owners) engaged in the fol lowing conduct 1 Engaged in surveillance by photographing employ ees on the picket line 2 Threatened to discharge employees who were en gaged in picketing 3 Told employees that the UAW would never get into the plant 4 Told Diaz that he would have to beg to get his job back On Monday November 9 (the second day of the strike) a truck arrived and its driver was asked by Carl Redis (a UAW official) not to cross the picket line The driver refused and proceeded to back his truck into the loading area Although it is not exactly clear what hap pened next it seems apparent that a degree of tumult caused Able Moskowitz and other company supervisors to arrive at the picket line where Moskowitz directed the driver into the loading bay Ron Keil the Company s security guard testified that when he arrived at the scene with Moskowitz and Harold Pretter he observed a lot of screaming by the pickets while the truck was backing up He states that he suddenly heard people yelling Heil Hitler whereupon he looked around and saw two or three people one of A P A WAREHOUSES 629 whom was Diaz According to Kell he saw two union officials making Nazi salutes whereupon he told Moskowitz to go back inside Keil asserts that he heard Diaz say We didn t kill all you f-g Jews and that a union official next to him said Some of you Jews es caped Were going to get the rest of you and we re going to kill the rest of you f-g Jews According to Keil the entire incident lasted about 10 minutes at most He states he also heard the strikers chanting at one point Dictator dictator last of the dictators Harold Pretter the Company s comptroller testified that when he arrived at the scene he observed the Unions officials along with Diaz shouting Heil Hitler and its a shame Hitler didn t kill all the Jews Pretter states that he saw Diaz give instructions to the other pickets about how to make the Nazi salute and also heard Diaz say that Hitler should have killed all or more of the Jews Pretter asserts that Diaz did not say to Moskowitz words to the effect of you are like Hitler or you resemble Hitler According to Pretter the inci dent lasted between 30 to 45 minutes He also states that on a couple of other occasions during the first week of the strike Diaz said Heil Hitler and made the salute when he (Pretter) passed by the pickets on his way to work This was uncorroborated Pedro Mauna a supervisor was also called by the Re spondents to testify about the November 9 incident He testified that he heard Diaz make some remarks like Heil Hitler and you are like Hitler Mauna states that Moskowitz responded by telling Diaz that he would only come into the building over his (Moskowitz) dead body According to Mauna one of the union officials made a salute type of gesture and said you are like Hitler and you treat us like Hitler It was not until after he asked if Diaz said anything about Jews that Mauna finally asserted that Diaz said something like Hitler didn t kill enough Jews On cross examination Mauna stated that he heard Diaz say that Moskowitz was like Hitler He also testified that a lot of people were shouting and that there was a lot of noise He finally tes tified that there were policemen standing close by and that they did not intervene at any time during the inci dent Carl Redis testified that when Moskowitz came out to direct the driver he (Redis) began to razz Moskowitz Redis asserts that Moskowitz said that the strikers were all fired and that the UAW would only come in over his dead body According to Redis he replied that Moskowitz had no respect for people or the law and that he was a dictator He states that Moskowitz said that s right I am a dictator At this point Redis asserts that he told Moskowitz in that case I should give you a salute whereupon he raised his arm and said Heil According to Redis he heard one of the people on the picket line say Hitler but that he did not hear Diaz say anything Redis denied that Diaz or anyone else at the picket line said anything about Hitler killing Jews Diaz who was called an adverse witness by Respond ents testified that during the incident Moskowitz told him that he would never work again at the Company whereupon he responded by telling Moskowitz that he was like Hitler Diaz denied that he made a salute that he said Heil Hitler or that he said anything about kill mg Jews Freddie Dros an International representative of the UAW also testified that he was at the picket line on No vember 9 He testified that he did not hear Diaz make the remarks attributed to him by Respondents witnesses At the election Diaz vote was challenged Through its counsel the Company asserted It is our position that Augusto Diaz was ineligible due to the fact that he was not on the list because he was not an employee having voluntarily resigned III ANALYSIS When a strike is caused by an employers unfair labor practices the employer is required to reinstate the strik ers on their offers to return to work dismissing if neces sary any strike replacements Mastro Plastics Corp v NLRB 350 U S 270 (1956) In Clear Pine Mouldings 268 NLRB 1044 (1984) the Board reversed Coronet Casuals 207 NLRB 304 (1973) which held that absent violence a picket is not dis qualified from reinstatement despite making abusive threats against nonstrikers Thus the Board adopted the view of the court in NLRB v W C McQuaide Inc 552 F 2d 519 524 (3d Cir 1977) in which the court stated that the test for determining if a strikers verbal threats to other employees is sufficient to disqualify him for re instatement is whether the misconduct is such that under the circumstances existing it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act Two of the Board members in Clear Pine Mouldings (Chairman Dotson and Member Hunter) went on to assert their opinion regarding the Board s past decisions applying a balancing test in unfair labor practice strike situations They stated In deciding whether reinstatement should be or dered after an unfair labor practice strike the Board has in the past balanced the severity of the employ er s unfair labor practices that provoked the strike against the gravity of the sinker s misconduct We do not agree with this test There is nothing in the statute to support the notion that sinking employees are free to engage in or escalate violence or miscon duct in proportion to their individual estimates of the degree of seriousness of an employers unfair labor practices Rather it is for the Board to fash ion remedies and policies which will discourage unfair labor practices and the resort to violence and unlawful coercion by employers and employees alike In cases of picket line and strike misconduct we will do this by denying reinstatement and back pay to employees who exceed the bounds of peace ful and reasoned conduct While concurring in the result Board Members Zim merman and Dennis relied solely on W C McQuaide and among other things did not reject the balancing test set out in NLRB v Thayer 213 F 2d 748 (1st Cir 1954) cert denied 348 U S 883 (1955) In the latter case it was held that the Board could balance a striker s misconduct 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD against the employers unfair labor practices that pro yoked the strike when deciding whether reinstatement was appropriate As a general rule conduct such as epithets vulgarities profanity and obscene gestures will not be sufficient to disqualify economic or unfair labor practice strikers from reinstatement W C McQuaide supra Hotel Holiday Inn 265 NLRB 1513 1516 (1982) reconsidered and re versed on other grounds 278 NLRB 1027 (1986) and Su perior National Bank 246 NLRB 721 724 (1979) In Old Town Shoe Co 91 NLRB 240 273 274 (1950) the teal examiner held that a striker was ineligible for re instatement when the striker at the picket line said to a manager It is too bad Hitler couldn t have lasted a couple of more years He d have gotten rid of all the goddam Jews I note however that the trial examiner also concluded that the striker had threatened the man ager with physical assault and it is not clear whether the remarks by the striker were made before or after the strike had been converted from an economic to an unfair labor practice strike Regarding the striker the Board adopted the trial examiners opinion as no exceptions were filed In the present case although it is clear that Diaz did make reference to Hitler during the incident on Novem ber 9 I do not credit the Respondents version of the event First by all accounts it is evident that the incident was attended by a good deal of shouting noise and con fusion Second it is my opinion that the three witnesses who testified for the Company gave significantly differ ent accounts of the event Thus while Pretter testified that he heard Diaz and the Unions officials say that Hitler should have killed all or more of the Jews Keil testified that the Union s officials additionally made a direct threat to the effect that we re going to kill the rest of you f-g Jews This threat was not confirmed by anyone else I also note that Mauna s initial testimony tended to corroborate Diaz assertion that all Diaz said was that Moskowitz was like Hitler It was not until Mauna was asked a leading question that he recalled that Diaz said something like Hitler didn t kill enough Jews Additionally I note that the Company s position in this case is inconsistent with the position it took in the representation case in which Diaz ballot was chal lenged In this case the Company is asserting that Diaz was not reinstated because of his strike misconduct which occurred during the week of November 8-14 In the representation case the Company took the position that Diaz had voluntarily quit Based on th foregoing inconsistencies and on demean or factors as well I credit Diaz denial that he made the statements or gestures attributed to him by Respondents witnesses Rather I conclude that on a single occasion after Moskowitz told Diaz at the picket line that he would not be allowed to return to work Diaz told Moskowitz that he was like Hitler In view of the above it is my conclusion that the al leged picket line misconduct by Diaz would not warrant his disqualification for reinstatement I therefore con clude that Respondents refusal to reinstate him on March 17 1988 constituted a violation of Section 8(a)(1) and (3) of the Act CONCLUSIONS OF LAW 1 Respondent is an employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 By denying reinstatement to Augusto Diaz for his strike related activities Respondents have engaged in and are engaging in unfair labor practices affecting com merce within the meaning of Section 8(a)(1) and (3) of the Act 3 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent has discriminatorily denied reinstatement to Augusto Diaz I shall recom mend that Respondent offer him immediate and full rein statement to his former or substantially equivalent pose tion without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings or other benefits he may have suffered by reason of the discrimination against him All backpay provided shall be computed with interest on a quarterly basis in the manner precribed by the Board in F W Woolworth Co 90 NLRB 289 (1950) with interest as prescribed in New Horizons for the Retarded 2 See also Isis Plumbing Co 138 NLRB 716 (1962) Additionally in accordance with Sterling Sugars 261 NLRB 472 (1982) I shall recommend that Respondent remove from its files any reference to the discharge of Augusto Diaz and to notify him in writing that this has been done and that evidence of same will not be used as a basis for future personnel actions against him On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed3 ORDER The Respondent A P A Warehouses Inc /Sea Jet Trucking Corporation/Affiliated Terminals Incorporat ed/Sea Jet Industries Incorporated/Sea Jet Trucking and A P A Warehouses Incorporated Brooklyn New York its officers agents successors and assigns shall 1 Cease and desist from 2 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 8 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses A P A WAREHOUSES (a) Discharging or refusing to reinstate striking em ployees who offer to return to work unless such employ ees engage in misconduct that under the circumstances may reasonably tend to coerce or intimidate employees in the exercise of their rights protected under the Act (b) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Augusto Diaz immediate full and uncondi tional reinstatement to his former position of employ ment or if that position no longer exists to a substantial ly equivalent one without prejudice to his seniority and other rights and privileges and if necessary discharge employees hired since the discrimination against him in order to make room for him and make him whole with interest for any loss of wages or benefits that he may have suffered as a consequence of the discrimination against him all in a manner consistent with the remedy section of this decision (b) Remove from its files any reference to the dis charge of Augusto Diaz and notify him in writing that this has been done and that evidence of the discharge 631 will not be used as a basis for any future personnel ac tions against him (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its office copies of the attached notice marked Appendix 4 Copies of the notice on forms pro vided by the Regional Director for Region 29 after being signed by the Respondents authorized representa tives shall be posted for 60 consecutive days in conspic uous places including all places where notices to em ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 4 If 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board r t