The Lawson Co.

792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Lawson Company and Milk and Ice Cream Drivers and Dairy Employees Union Local 336 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO 1 Cases 8-CA-19002 8- CA-19004 8-CA-19005 8-CA-19272 8-CA- 19313 and 8-CA-19313-2 November 25 1988 DECISION AND ORDER By MEMBERS JOHANSEN CRACRAFT AND HIGGINS On February 5 1988 Administrative Law Judge Irwin H Socoloff issued the attached decision The General Counsel filed exceptions and a supporting brief The Respondent filed a reply 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 briefs and has decided to affirm the judge s rulings findings 2 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the complaint is dismissed provided that jurisdiction of this proceeding is re tained for the limited purpose of entertaining an ap propriate and timely motion for further consider ation on a proper showing that either (a) the dis pute has not with reasonable promptness after the issuance of the Decision and Order either been re solved by amicable settlement in the grievance pro cedure or submitted promptly to arbitration or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act i On November 1 1987 the Teamsters International Union was read muted to the AFL-CIO Accordingly the caption has been amended to reflect that change 2 In the absence of exceptions the Board adopts the judge s recommen dations that the Respondent did not violate the Act by discharging em ployees Kimble Hairston Burns Anzaldi Dearth Clark Krbec Lenox Mason and Watson and that the accrued driver safety award bonuses issue is appropriate for deferral Charles Z Adamson Esq for the General Counsel Michael T McMenamin Marcia E Hurt or Mark T Wassell Esqs of Cleveland Ohio for the Respondent DECISION STATEMENT OF THE CASE IRWIN H SOCOLOFF Administrative Law Judge On charges filed on 10 March 25 June and 8 July 1986 by Milk and Ice Cream Drivers and Dairy Employees Union Local 336 of the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America (the Union) against The Lawson Company (the Respondent) the General Counsel of the National Labor Relations Board by the Regional Director for Region 8 issued a second amended consolidated complaint dated 31 October 1986 alleging violations by Respondent of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act (the Act) Respondent by its answers denied the commission of any unfair labor practices Pursuant to notice trial was held before me in Cleve land Ohio on 1 2 3 and 4 December 1986 at which the General Counsel and the Respondent were represent ed by counsel and were afforded full opportunity to be heard to examine and cross examine witnesses and to in troduce evidence Thereafter the parties filed briefs that have been duly considered On the entire record in this case and from my obser vations of the witnesses I make the following FINDINGS OF FACT I JURISDICTION Respondent a Delaware corporation has an office and place of business in Cuyahoga Falls Ohio and is en gaged in the production distribution and retail and non retail sale of dairy products and the operation of retail stores Annually Respondent in the course and conduct of its business operations derives gross revenues in excess of $500 000 and sells and ships products valued in excess of $50 000 from its Cuyahoga Falls Ohio facility directly to points located outside the State of Ohio I find that Respondent is an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Background The Union represents Respondents plant employees and its drivers working at the Cuyahoga Falls facility in separate collective bargaining units The most recent contracts between the parties were effective 15 Decem ber 1982 to 15 December 1985 Beginning on the date those agreements expired both units of employees en gaged in an economic strike On 4 February 1986 Respondent discharged striking employees Richard Anzaldi Larry Burns Charles Hair ston and Ronnie Kimble Earlier on 26 December 1985 it discharged strikers Henry Mason Paul Dearth Gerald Lenox John Clark Dale Krbec and Anzaldi On 10 February 1986 striking employee Kenneth Watson was discharged In the instant case the General Counsel contends that the strikers were discharged in violation of Section 291 NLRB No 126 LAWSON CO 8(a)(3) of the Act because they engaged in an economic strike Respondent asserts that it terminated the employ ment of those individuals for lawful reasons namely its good faith belief that they had engaged in serious mis conduct during the course of the strike Also at issue is whether Respondent violated the Act by its refusal to pay accrued vacation money and accrued driver safety award bonuses to striking employees B The Discharges of Anzalsi Burns Hairston and Kimbell Patrolman Gary Pritchard of the Austintown Ohio police department testified that about 2 a in on 29 Janu ary 1986 he passed a small shopping center in Austin town which contained a Lawson store and three other stores all of which were closed Pritchard noticed a car parked in the lot that serviced those stores The vehicle was running and contained three occupants later identi feed as Richard Anzaldi Charles Hairston and Larry Burns Pritchard also observed a man standing in the alley between the Lawson store and another store about 2 to 3 feet back from the front of those stores As Pritch and drove into the parking lot to investigate the subject vehicle driven by Anazaldi exited and the man in the alley ran toward the woods behind the stores Pritchard pursued the car stopped it and questioned the occu pants Anzaldi Hairston and Burns identified themselves as striking employees of Lawson who were distributing strike related fliers Following the arrival of a second police officer the vehicle was searched and the police officers found and confiscated three slingshots two ice picks and two hatches The officers also observed but did not confiscate rocks and bricks They allowed the occupants of the car to leave and one of them told Pritchard that they would go to a nearby Taco Bell Res taurant Pritchard told them that the Taco Bell was closed and he suggested that they go instead to another nearby restaurant Luciano s After the car driven by Anzaldi departed Officer Pritchard returned to the Austintown Lawson store where he found footprints in the snow around an electn cal meter located on the side of the Lawson building Pritchard observed that the meter had been damaged the bottom half of the cover had been pried away from the box and the glass encasement was cracked Pritchard so notified a Lawson representative About 2 hours later Pritchard observed Anzaldi s ve hicle at a nearby gas station The officer spoke to Burns who asked if Pritchard had arrested the fourth man Pritchard said that the police had not seen him and asked for his name Burns replied that he was with us but I don t know his name Still later during the early morn ing hours of 29 January Pritchard learned that a brick had been thrown through a window at the Lawson store in Lake Milton Ohio some 10 miles form the Austin town store Pritchard then had a police car dispatched to i The factfindings contained in this section are based primarily on the testimony of Officer Gary Pritchard a patrolman with the Austintown Ohio police department a disinterested witness who testified in a clear and convincing manner I have also relied on the testimony of Thomas Lee Respondents regional loss prevention manager who impressed me as a truthful witness 793 Luciano s restaurant where Anzaldi s car was parked and the bricks in that car were confiscated Pritchard met with Respondents regional loss preven tion manager Thomas Lee at 6 a in at the Austintown store Pritchard told Lee of what had occurred earlier that morning and pointed out the damage to the electn cal box Shortly thereafter while inside the store they were approached by Janice Kimble the former wife of striking employee Ronnie Kimble Janice Kimble asked Officer Pritchard if he had arrested a white male about 6 feet tall wearing a blue plaid jacket a description which matched that of the man Pritchard earlier had seen in the alley Kimble said that she was the man s former wife and that some friends had called her and asked her to come to Austintown to help find him She added that They were just standing in the parking lot They weren t doing anything Pritchard asked why a former wife would drive some 50 miles from her home in the early morning hours to look for a former husband Kimble said that she had three children at home She told Pritchard and Lee that she would rejoin her friends at the nearby restaurant After Lee learned that bricks had been thrown through the window of the Lake Milton store he ob served and photographed fragments of those bricks and the bricks that the police had removed from Anzaldi s car Lee found a similarity of color and consistency He also learned that the man observed in the alley by Pritchard and described by Janice Kimble fit the de scription of Ronnie Kimble On the basis of the foregoing evidence provided to Respondent through the statements of Pritchard and Lee Respondent formed the belief that Anzaldi Burns Hairston and Kimble acting in concert had vandalized the Lawson stores in Austintown and Lake Milton On 4 February 1986 they were discharged for having engaged in strike misconduct Anzaldi Burns Hairston and Kimble all testified that they did not engage in vandalism of Respondents stores Kimble testified that he was at home on the evening in question and Anzaldi Burns and Hairston testified that Kimble was not with them According to Anzaldi Burns and Hairston the three of them met about 6 p in on 28 January at Anzaldi s home in Akron Ohio and then drove some 45 miles to the Austintown area where they proceeded to distribute literature until 6 a in on 29 January They further testified that before they were stopped by Officer Pritchard they had not parked in the lot of the Lawson store in Austintown but rather had simply driven into the lot turned their vehicle around and driven out According to Anzaldi they met Janice Kimble at Luciano s restaurant after 2 a in pursuant to Anzaldi s prearrangement with her because she was pro viding strike assistance Thereafter according to Hair ston he left the restaurant in Jancie Kimble s car and with her proceeded to distribute more pamphlets Hair ston testified that he was in Janice Kimble s company the entire morning and returned with her to Akron at 8 a in and that she did not stop at the Austintown store at 6 or 6 30 a in However contrary to Hairston s testimo ny Burns claimed that Hairston remained with Burns 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Anzaldi and returned to Akron with them The General Counsel did not call Janice Kimble as a wit ness 2 The circumstantial evidence in Respondents posses sion provided by Pritchard and Lee might be insuffi cient to secure criminal conviction It was however manifestly sufficient for Respondent to form a good faith belief that Anzaldi Burns Hairston and Kimble acting in concert had vandalized its stores The testimony of Anzaldi Burns Hairston and Kimble contained inherent improbabilities conflicted with the testimony of credible witnesses and on certain points they contradicted each other Further I draw an adverse inference from the General Counsels failure to call Janice Kimble as a wit ness In these circumstances I am not persuaded that the claimed misconduct did not in fact occur and I con clude that Respondent lawfully discharged Anzaldi Burns Hairston and Kimble in reliance on its good faith belief that they had engaged in serious strike misconduct C The Discharges of Mason Dearth Lenox Clark, Krbec and Anzaldt3 On 16 December 1985 in the early evening Harry Baldwin since retired drove a lawson truck to the main gate of Respondents plant in Cuyahoga Falls As he turned into the driveway passage of Baldwin s truck was blocked by five pickets including Paul Dearth Henry Mason and Richard Anzaldi who stood in front of the truck They were later joined by others including John Clark and Dale Krbec Another picket Jerry Lenox stood to the side of the truck After a few minutes Lenox walked to the truck and disconnected the air hoses thereby immobilizing it At that time the truck s trailer was overhanging the first of three sets of railroad tracks that lie to the west of the Lawson gate After a short while a train whistle was heard and someone yelled There s a train coming get that damn truck off the track One of the pickets then re hooked the air hoses and Baldwin was allowed to pull the truck forward a few feet before its path was blocked again The air hoses were again unhooked and Clark aided by Anzaldi turned down the trailers dolly wheels Nonetheless accordirg to the testimony of Respondent s vice president Thomas Chicome an eyewitness part of the trailer continued to overhang the first set of tracks If the approaching train had been on that set of tracks it would have hit the trailer Fortunately however the train happened to pass on the middle set of tracks and it missed the trailer by 4 to 6 feet After the passage of the train a group of pickets re mained in front of the truck including Mason Dearth Lenox Clark Krbec and Anzaldi The police were called and at the time of their arrival the pickets still blocked passage of the truck but the trailer was no longer overhanging the railroad tracks When Clark alone among the pickets refused the order of a police 2 Respondent served her with a subpoena but she failed to appear at trial 3 The factfindings contained in this section are based primarily on the testimony of former employee and Supervisor Harry Baldwin and that of Respondents vice president Thomas Chicome both of whom impressed me as truthful witnesses of clear recollections of events man to move out of the path of the truck a scuffle ensued among the police officers Clark and Krbec Clark and Krbec were arrested The entire incident lasted some 30 minutes Ten days later on 26 December 1985 Respondent discharged Mason Dearth Lenox Clark Krbec and Anzaldi for strike misconduct with re spect to this incident Lenox did not testify in this proceeding Clark Krbec Anzaldi and Dearth did testify and they admitted to blocking ingress of the truck They denied that they dis abled or immobilized the truck Mason admitted he was standing at the side of the truck but he denied that he helped block the ingress of the truck However three other witnesses including the driver Baldwin testified that Mason stood in front of the truck with the group of pickets blocking ingress The weight of credible evidence establishes that Mason did indeed stand in front of the truck The 16 December 1985 incident which gave rise to the discharge of Mason Dearth Lenox Clark Krbec and Anzaldi involved more than blocking the ingress of a truck and temporarily disabling it By blocking the movement of the truck at a time when its trailer was overhanging a set of railroad tracks these individuals created a life threatening situation Indeed but for the happenstance fact that the approaching train passed on the adjacent set of tracks loss of human life or great bodily injury would have occurred In these circum stances I find and conclude that the strikers were en gaged in unprotected activity and that the discharge of those strikers was not in violation of the Act 4 D The Discharge of Watson On 7 February 1986 striking employee Kenneth Watson picketed at the main gate of Respondents plant in Cuyahoga Falls Late in the afternoon according to the testimony of Tom Stewart a security guard em ployed by Mid American Security Incorporated two Lawson trucks exited through the gate At that time Stewart testified he observed a picket stationed in front of the gate later identified as Watson who carried a stick in one hand and a hammer in the other Stewart further testified that as the first truck exited the picket waived the stick and yelled at the driver Some 45 sec onds later as the second truck departed the picket threw the hammer at the trailer of that truck Subse quently the picket walked onto the street and retrieved the hammer Stewart reported the matter to his superior and a Lawson official was advised Watson in his testimony denied throwing a hammer or any other object at a truck He testified that as the second truck exited a hammer fell off the truck and landed on the street At that point Watson claimed he walked out onto the street picked up the hammer and removed it from the street area The report of the security guard Stewart provided Respondent with ample basis to form an honest belief that Watson had engaged in an unprovoked act of vio lence that justified his discharge 5 Watson s testimony 4 New Galax Mirror Corp 273 NLRB 1232 (1984) 5 See Western Pacific Construction 272 NLRB 1393 (1984) LAWSON CO denying that he had engaged in misconduct lacked the ring of truth and thus I am not persuaded that the claimed misconduct did not in fact occur I therefore conclude that the discharge of Watson was not in viola tion of the Act E The Vacation Pay and Driver Safety Award Bonus Issues The parties agree that the drivers and the plant em ployees earned vacation pay pursuant to the terms of the expired collective bargaining agreements An employee s accrued 1985 vacation pay was earned from his anniver sary date in 1984 to his anniversary date in 1985 Those striking employees who had not taken or been paid for their 1985 vacation prior to the 15 December 1985 coin mencement of the strike received their accrued 1985 va cation pay during the strike Accrued 1986 vacation pay was earned from the em ployee s 1985 anniversary date to 15 December 1985 Employees who joined the strike have not received their accrued 1986 vacation pay unless they have been terms nated retired quit or returned to work Respondent in tends to pay accrued 1986 vacation benefits to the stnk ers at the conclusion of the strike when they return to work or are placed on a preferential hiring list In refus ing to pay accrued 1986 vacation benefits to employees on voluntary leaves of absence Respondent relies on its interpretation of the governing contracts and on past practice The expired contract covering the plant employees provides In the event an employee is laid off or is discharged or is allowed to resign in connection with discipli nary action they shall be entitled to any full annual vacation earned but not taken In the event of a vol untary resignation they are entitled to any va cation earned and not taken The drivers agreement provides In the event an employee is laid off or is dis charged or if he resigns he shall be entitled to any full annual vacation earned but not taken In the absence of contract provisions expressly covering entitlement to receive accrued vacation pay during pen ods of voluntary leave of absence Respondent contends that under the cited provisions it is privileged to with hold accrued vacation pay from strikers who have not retired resigned or been terminated In the past the Company has withheld payment of accrued vacation benefits to employees on sick leave or other voluntary leave of absence until the employee returned to work retired or resigned The expired drivers agreement provides for a driver safety award program under which drivers who have safe driving records receive a cash bonus Eligibility for the award is based on guidelines established by the Na tional Safety Council In the past the bonuses were paid in April at an awards banquet Shortly before the strike began Respondent notified the Union that in the event of a strike hospitalization 795 benefits would cease After the strike began various strikers made use of their prescription drug cards with out authorization from Respondent In March or April 1986 Respondent notified those employees of the amount of money due as reimbursement Thereafter some of the striking employees made the requested pay ments Strikers who returned to work during the course of the strike were required to make such reimbursements to the Company When during the summer of 1986 Re spondent paid bonuses to those drivers eligible for a driver safety award it deducted unauthorized prescnp tion drug charges from the awards of those drivers who had not previously reimbursed the Company In the past Respondent has similarly made deduction from payments to employees for money owed the Company As noted Respondent contends that in withholding accrued 1986 vacation pay and in making deductions from the driver safety award bonuses it was lawfully im plementing its rights under the contract and acting in ac cordance with past practice Given the cited contract provisions and the evidence of past practice these con tentions are substantial and not frivolous The Company is willing to submit these disputes directly to arbitration pursuant to the contractual procedures In light of the above and as these disputes are ground ed in contract and cognizable under the grievance arbi tration provisions of the parties collective bargaining agreements referral to the arbitral forum is indicated I conclude under United Technologies Corp 6 that the con tractual disputes should not be considered on their merits but rather that deferral to the contractually created forum is appropriate CONCLUSIONS OF LAW 1 Respondent The Lawson Company is an employer engaged in commerce and in operations affecting coin merce within the meaning of Section 2(2) (6) and (7) of the Act 2 Milk and Ice Cream Drivers and Dairy Employees Union Local 336 of the International Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent did not violate the Act by discharging Ronnie Kimble Charles Hairston Larry Burns Richard Anzaldi Paul Dearth John Clark Dale Krbec Gerald Lenox Henry Mason and Kenneth Watson 4 The issues raised by the complaint concerning Re spondent s refusal to pay accrued vacation money and accrued driver safety award bonuses to striking employ ees are appropriate for deferral to the grievance arbitra tion provisions of the most recent collective bargaining agreements between Respondent and the Union On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed' 6 268 NLRB 557 (1984) 7 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 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER Those portions of the complaint alleging that employ ees were discharged in violation of Section 8(a)(3) of the Act are dismissed Those portions of the complaint alleging that nonpay ment of accrued vacation money and accrued driver safety award bonuses to striking employees was in viola tion of Section 8(a)(3) of the Act are dismissed provided that Jurisdiction of this proceeding is retained for the limit ed purpose of entertaining an appropriate and timely motion for further consideration on a proper showing that (a) the dispute has not with reasonable promptness after the issuance of this decision either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act