Acme Steel Partition Co.

National Labor Relations Board - Board Decisions

Sep 21, 1993

312 N.L.R.B. 261 (N.L.R.B. 1993)

261
312 NLRB No. 60
ACME STEEL PARTITION CO.
1 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance 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). We have carefully
examined the record and find no basis for reversing the judge’s find-
ings.
2 In concluding that discriminatory changes were imposed, the
judge relied, inter alia, on the fact that when Kennedy carried a
beeper he had to call the office only three to four times per day.
After the beeper was taken away, he had to call once every hour
on the hour. We think it reasonable that more calls are required
without a beeper than with a beeper. However, we agree with the
judge that the taking away of the beeper was discriminatorily moti-
vated, as was the requirement to call in as frequently as once per
hour on the hour.
Acme Steel Partition Co., Inc. and Joseph Kennedy.
Case 29–CA–16335
September 21, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 23, 1993, Administrative Law Judge Ste-
ven Davis issued the attached decision in this proceed-
ing. The General Counsel and the Respondent filed ex-
ceptions and supporting briefs, and the Respondent
filed a reply brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Acme Steel Partition Co.,
Inc., Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Cheryl Weir-Reeves and Rhonda Aliouat, Esqs., for the Gen-
eral Counsel.
Jack R. Elliott, Esq. (Cabaniss, Burke & Wagner, P.A.), of
Orlando, Florida, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on February 10, 1992, by Joseph Kennedy, an
individual (Kennedy), a complaint was issued against Acme
Steel Partition Co., Inc. (Respondent) on March 25, 1992.
The complaint alleges essentially that Respondent unlaw-
fully (a) interrogated its employees regarding their member-
ship in Truck Drivers Local Union No. 807, International
Brotherhood of Teamsters, AFL–CIO (the Union); (b) im-
posed more arduous working conditions upon Kennedy by
subjecting him to closer supervision and assigning him more
onerous and additional work than he had previously been as-
signed; (c) issued a written disciplinary warning to Kennedy;
and (d) discharged Kennedy.
Respondent’s answer and amended answer to the com-
plaint denied the material allegations thereof, and a hearing
was held before me in Brooklyn, New York, on December
7, 1992.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its principal
office and place of business at 513 Porter Avenue, Brooklyn,
New York, a subsidiary of Masco Industries, a Delaware cor-
poration having its headquarters located in Taylor, Michigan,
has been engaged in the manufacture of hollow metal doors,
frames and partitions, and related products.
During the past year, Respondent purchased and received
at its Brooklyn facility, products, goods, and materials valued
in excess of $50,000 directly from points outside New York
State.
Respondent admits, and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent also admits, and I find that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE FACTS
Respondent is a manufacturer of steel doors, door frames,
and metal partitions. It employs about 300 employees who
are represented by 7 different labor organizations, including
the Union. The Union represents about six employees of the
Employer.
Respondent has had collective-bargaining agreements with
the Union for 25 to 30 years. Their current agreement, expir-
ing in July 1994, covers a unit of ‘‘full time drivers only.’’
The drivers covered by the contract all have commercial
drivers licenses and operate the largest vehicles owned by
Respondent, the six wheelers and tandems, as well as
high/cube vehicles, which are smaller trucks. Kennedy does
not have a commercial drivers license.
In mid-August 1991, Kennedy was interviewed for the po-
sition of messenger by Jim Bocchicchio, Respondent’s traffic
manager. His duties were described as being responsible for
making pickups and deliveries of light packages and blue-
print plans to and from Respondent’s premises to its cus-
tomers. His responsibilities also included making a bank de-
livery and pickup; picking up at the post office the incoming
mail and bringing it to the switchboard operator who distrib-
utes it; weighing, stamping, and taking to the post office the
outgoing mail each evening; and delivering mail to Respond-
ent’s other facility in Queens. For these purposes, Kennedy
drove the Employer’s station wagon.
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the interview, Kennedy was told by Bocchicchio that
his hours of work were 8:30 a.m. to 5 p.m., and that some
overtime might be required. Kennedy explained that he at-
tended religious meetings on Tuesday and Wednesday eve-
nings and would not be available for overtime work on those
nights. According to Kennedy, Bocchicchio agreed, but
Bocchicchio testified that he could not change the hours of
work, but he would attempt to try to resolve any difficulty
which might arise.
After being employed for 2 to 3 weeks, Kennedy’s hours
of work were changed to 8 a.m. to 4:30 p.m., thereby permit-
ting Kennedy to arrive earlier, get his work completed ear-
lier, thus enabling him to leave work before the end of his
work day. Bocchicchio testified that this change was made
in order to accommodate Kennedy’s religious meeting night
schedule.
Within the first week of his employment, Kennedy was
told by Bocchicchio to deliver certain doors to a Manhattan
location. Kennedy told Bocchicchio that he believed that
such work was the drivers’ job. Bocchicchio replied that no
drivers were available, and asked that he do this ‘‘favor.’’
Kennedy agreed and made the delivery using the station
wagon.
Kennedy stated that, thereafter, he made deliveries every
day, driving the Employer’s high/cube truck at times, instead
of the station wagon, because there were too many doors to
fit in the station wagon.
In about late August 1991, while Kennedy was picking up
doors at the Employer’s factory, he was asked by some of
the Employer’s union drivers how he could be delivering
doors and not be a member of the Union. On his return to
the office that day, Kennedy told Bocchicchio of the union
drivers’ remarks, and asked him when he could join the
Union. Bocchicchio replied that he could not join the Union
because he was a member of the office staff, and was paid
from the office payroll.
Thereafter, Kennedy continued to deliver doors and parti-
tions, mostly using the high/cube truck. He also made such
deliveries using the station wagon. Bocchicchio testified that
Kennedy delivered the same materials as Respondent’s regu-
lar drivers, but such work constituted only 1 to 2 percent of
his duties. In contrast, he delivers 10 to 15 blueprints and
plans each day.
Pursuant to Kennedy’s request, Respondent’s director of
personnel, Anna Cicio, wrote a description of Kennedy’s du-
ties which included: ‘‘Drive car to various jobsites to deliver
packages, individual doors, frames, tools, etc.’’
On about January 24, 1992, Kennedy visited the Union
and met with Business Agent Robert Vanderhoef. Kennedy
described his duties to Vanderhoef and showed him the note
from Cicio. Vanderhoef then had Kennedy fill out an appli-
cation for membership. Thereafter, on about January 27, he
was issued a union membership card.
Vanderhoef testified that bargaining unit work includes
any employee driving a truck and making deliveries for Re-
spondent. It is the Union’s position that Kennedy was a
member of the bargaining unit.
A. The Events of January 31
Kennedy testified that on Friday, January 31, he brought
a package to secretary Lilian, who then asked him to deliver
it to a specific person in the office. Kennedy said that he did
not know that person. Lilian demanded that he deliver it as
instructed. Kennedy refused, saying that his union representa-
tive told him that he was required only to pickup and drop
off mail, and that he did not have to deliver blueprints. Lilian
called Supervisor Julio Castro and explained the situation.
Castro told her not to worry about it. Kennedy was not dis-
ciplined for this incident.
Kennedy stated that 10 minutes after this incident,
Bocchicchio called him into the office and asked him ‘‘what
is this I hear about you joining the Union?’’ Kennedy then
replied that he was a member of the Union, and presented
his union card, and the business card of agent Vanderhoef.
Bocchicchio took them to the personnel office, and shortly
thereafter, the cards were returned to Kennedy.
Bocchicchio admitted asking that question of Kennedy. He
stated that his inquiry was prompted by his overhearing cer-
tain drivers in his office speaking about Kennedy being a
member of the Union. When he heard their conversation, he
asked a driver why they were talking about Kennedy and the
Union. The driver responded that he thought Bocchicchio
knew about it. Bocchicchio replied that he did not know
about it. Bocchicchio further conceded that when Kennedy
advised him that he was a member of the Union, Boc-
chicchio told him that he wished that Kennedy would have
come to him first, since the messenger job is not a union po-
sition. Bocchicchio also admitted asking Kennedy at that
time ‘‘why didn’t you come to me instead of taking it upon
yourself to go down to the Union?’’
Bocchicchio testified that Kennedy’s joining the Union
was of no ‘‘major concern’’ to him, although he was not cer-
tain of the ‘‘ramifications’’ of someone joining the Union on
his own—whether he would be part of the bargaining unit,
or how it might ‘‘disrupt’’ his department. Accordingly, he
brought Kennedy’s union card, and the union agent’s card to
the personnel office. Personnel Director Cicio told
Bocchicchio not to worry about it. She stated that although
she recognized Kennedy’s right to join the Union, she knew
that his position as messenger was not covered by the collec-
tive-bargaining agreement, and the Respondent therefore
would not recognize his position as being included within the
bargaining unit.
B. The Events of February 3
Kennedy had a beeper with which he was called by the
office. When called, he was usually instructed to make an
emergency pickup.
Following the January 31 incident, the next workday, Feb-
ruary 3, Supervisor Castro took Kennedy’s beeper from him,
and gave him an 800 telephone number, instructing him to
call the office every hour on the hour, even if he was in the
middle of traffic. This was the first time that Kennedy had
been told to call the office on a regular schedule. Kennedy
testified that at that time his beeper was working. Prior to
this, when beeped Kennedy called the office, which amount-
ed to three to four times daily.
Kennedy attempted to follow those instructions. He stated
that he had difficulty doing so because he had to park the
truck and find a phone. Nevertheless, he stated that he called
the office every hour on the hour. He testified that he did
not speak with Castro on each occasion he called because he
was told by the switchboard operator that she could not reach
the shipping office, or that no one was picking up the phone
263ACME STEEL PARTITION CO.
in that department. Kennedy stated, however, that he was
able to contact them in the afternoon, and that he had, in
fact, spoken to Bocchicchio or Castro about three times that
afternoon.
Kennedy stated that he was not able to make all his as-
signed deliveries and pickups that day because of the time
consumed in making the phone calls. He returned to the of-
fice at about 4 p.m., and was given a ‘‘record of offense and
warning’’ letter from Castro and Bocchicchio for failure to
follow instructions. The warning stated as follows:
Before leaving today you were instructed to call the
Shipping Office every hour, and was [sic] given the
800 number to do so. By 4:15 pm we received only 1
call from you and had other work that needed to be
done but is [sic] delayed because you did not follow in-
structions.
The letter noted that it was a first warning, and that a fail-
ure to immediately correct his work behavior would result in
further disciplinary action. Kennedy was asked to, but re-
fused to sign the letter. Instead, he submitted an answer to
the warning, which stated that he called every hour, noting
that his beeper should be used to contact him.
Bocchicchio and Castro testified that at times they had dif-
ficulty contacting Kennedy on his beeper. Bocchicchio stated
that toward mid to late January 1992, the beeper seemed to
malfunction occasionally. When told that they were unable to
contact him by beeper, Kennedy told them the beeper did not
sound and that it was working. Bocchicchio and Castro then
decided to remove Kennedy’s beeper and have it checked as
they assumed that it was not working properly, and also re-
quire Kennedy to call the office every hour so that they
could advise him of any additional pickups. Castro stated
that Kennedy was not given another beeper because none
was available.
According to Bocchicchio and Castro, Kennedy called
only once on February 3. It was then decided that he receive
a warning for failure to follow instructions. Castro told Per-
sonnel Director Cicio of Kennedy’s failure to call in as di-
rected, and she prepared the warning letter. Bocchicchio,
Castro, and Cicio testified that there are sufficient telephone
lines so that if Kennedy indeed called every hour his call
would have been relayed to the shipping department, and if
Bocchicchio or Castro were unavailable, they would have
been paged.
The following day, February 4, Kennedy was asked to call
in once every 2 hours. This was done so that Kennedy would
not have to take time from his deliveries to make the calls,
as it was determined that calling every hour was too time
consuming.
Kennedy testified that he was spoken to only once about
his alleged failure to respond to his beeper, and that was
about 2 months before he joined the Union. He was not dis-
ciplined for that.
C. The Events of February 5
Kennedy testified that when he arrived for work he was
immediately told by Bocchicchio not to make a scheduled
pickup that morning at Williams Construction Company be-
cause he had to drive Jack Teich, an official of Respondent,
to Manhattan. He then proceeded to make three stops, and
called Castro at about noon. Kennedy told Castro that he had
not yet made the Williams pickup. Castro directed him to re-
turn to the office to make his usual trip to the bank.
Kennedy arrived at Respondent’s premises at about 1 p.m.,
and told Castro that he had not completed all his stops. Cas-
tro then wrote a manifest containing five stops, including the
Williams stop. Kennedy conceded that Castro told him at
that time that it was important that the Williams plans be
picked up that day. Bocchicchio also testified that he told
Kennedy in the morning that the Williams plans must be
picked up that day.
In this connection I note that the manifest offered by Re-
spondent, which is a photocopy, has the letters ‘‘ASAP’’
next to the Williams stop. Kennedy retained, and I received
in evidence, the original manifest which does not have those
letters. Clearly, this was an improper attempt by Respondent
to support its case, after the fact, by making it appear that
Kennedy was apprised, in writing, on receipt of the manifest,
that he must do the Williams stop as soon as possible.
Castro instructed Kennedy to make the bank stop first and
then make the stops listed as he went uptown. Kennedy left
Respondent’s premises at about 1:26 p.m. to make the five
stops listed. His first stop was at the bank on Pine Street.
He then called the office and spoke to Castro, who added an-
other stop. Kennedy’s next stop was at Herbert Construction,
at 115 West 18th Street. He called the office at 3 p.m. He
then went to AJ Construction located at Park Avenue and
31st Street.
The next scheduled stop was at Williams Construction
Co., located at Park Avenue and 53rd Street. Kennedy called
the office at about 3:30 p.m. from Park Avenue and 34th
Street.
According to Kennedy, during that call he told Boc-
chicchio that traffic was congested, it was late, and he had
work to do in the office once he returned, such as putting
the mail in sacks. He told him that inasmuch as he was not
able to travel uptown due to the traffic, he would not make
the Williams stop that day, but would make it his first stop
the following morning. Bocchicchio replied that he must
make the Williams stop, and that it was important that the
plans be picked up that day.
Kennedy answered that that night was his religious meet-
ing night, and if he made the stop he would be late for his
meeting. Kennedy also reminded Bocchicchio of their agree-
ment on his hire of his unavailability for work on meeting
nights. Bocchicchio again said that Kennedy must make the
Williams stop. Kennedy did not reply.
According to Kennedy, the telephone operator then asked
for more money, which Kennedy did not have. They were
then disconnected, and he then hung up the phone. He did
not use the 800 number which he had the day before, and
did not call Respondent collect. As will be noted later,
Bocchicchio believed that Kennedy hung up on him. Ken-
nedy’s pretrial affidavit states that after the operator said that
he had to deposit more money ‘‘I hung up on him.’’ Ken-
nedy claims that he told the Board agent that he was discon-
nected, but the agent failed to include that in the affidavit.
Accordingly, Kennedy conceded that he erred in swearing to
the affidavit’s truth as to that point.
Kennedy returned to Respondent’s premises at about 3:55
p.m., and was asked by Bocchicchio why he hung up on
him. Kennedy replied that he was disconnected by the opera-
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tor. He was brought into the personnel office by
Bocchicchio, and he explained the events of the day. Cicio
asked him why he did not make the Williams stop and he
explained that he did not make the stop because of the late-
ness of the hour and because of his meeting. He offered to
make the pickup the following morning. According to Ken-
nedy, Cicio told him to make the pickup immediately. Ken-
nedy again offered to do it the following morning, and Cicio
discharged him.
A letter of discharge, dated February 5, was received in
evidence. Cicio testified that it was mailed to Kennedy, but
he denies receipt of it. It states as follows:
You were employed as a messenger on August 12
1991. On a daily basis you received a manifest which
lists the stops you were to make that day. Today, Feb-
ruary 5, 1992, the second stop listed was a pickup of
plans at Williams Construction, 345 Park Avenue. You
were also told on Monday, February 3, 1992 to call the
office every hour for instructions. You did do that
today and was [sic] told twice, once by Julio Castro
and once by Jim Bocchicchio, that the pickup at Wil-
liams Construction was important. When you spoke to
Julio you told him you did not have enough time to
make the stop and later when you spoke to Jim you
told him you would not do it and hung up the phone.
During a conversation at approximately 4:15pm this
evening, with myself and Jim Bocchicchio, you told me
that you were aware of the urgency of this stop and still
you elected not to do it. As a result, you are discharged
for insubordination.
Kennedy testified that on many occasions prior to Feb-
ruary 5 he was unable to complete all the stops on his mani-
fest, but that he makes them the first stops the following
morning. This procedure had always been followed without
incident or complaint until February 5.
Kennedy first testified that he was not aware of the ur-
gency of the Williams pickup, but later testified that it was
possible that he told Cicio that he was aware of the urgency
of the stop.
Kennedy testified that if he made the Williams stop, con-
sidering the traffic and the amount of mail he had to process
when he returned to the office, he could not leave the office
until 7:30 or 7:45 p.m., missing his 7 p.m. meeting.
He estimated that it would take him up to 60 minutes to
travel the 19 blocks from 34th Street to 53d Street to make
the Williams pickup. Then, assuming it would take 30 min-
utes to travel to the shop from Williams, which was the
amount of time it took for him to travel from 34th Street to
the shop, he would arrive at Respondent’s premises at about
5 p.m. He further stated that it takes 1 hour to go from the
shop to his home, so he would arrive at home at about 6
p.m., leaving more than enough time to prepare for the meet-
ing and walk 15 minutes to the meeting’s site.
However, this assumes that someone else would process
the mail which was his daily responsibility on returning to
the shop after making his deliveries and pickups. Kennedy
estimated that it took from 2 to 4 hours each day to process
the mail and take it to the post office. Bocchicchio testified
that such duties only consume 30 minutes, and that if Ken-
nedy had to leave early for his meeting that night,
Bocchicchio would have assigned someone to process the
mail, or he would have done it himself.
In this regard, Kennedy’s credibility leaves something to
be desired. On cross-examination, when asked whether
Bocchicchio told him at 3:30 p.m. that he would have to do
the mail if he returned late, Kennedy replied that Boc-
chicchio told him that he would have to process the mail.
However, Kennedy later changed that testimony to assert that
although Bocchicchio did not actually tell him he would
have to do the mail, he understood that he would have to do
that function since that was his job and he was supposed to
do the mail each day.
Similarly, Kennedy became argumentative, contending that
Bocchicchio could not later insist that he make the Williams
pickup because Bocchicchio had told him in the morning that
he should not make the Williams pickup at that time because
driving Teich to Manhattan was more important.
Kennedy testified that on his meeting nights, Tuesdays and
Wednesdays, he would return to Respondent’s premises at
about 3:30 p.m. and leave in time for his meetings. On other
evenings, he would work later. However, Kennedy’s time
cards establish that he left work later on his meeting nights.
Thus, in a 6-week period during August 17 to October 12,
1991, Kennedy left work at 5 p.m., 5:01 p.m., 5:23 p.m.,
5:32 p.m.; 5:42 p.m.; and 6 p.m. on meeting nights.
D. The Phone Call of Mrs. Kennedy
On the Friday of Kennedy’s discharge, his wife phoned
Respondent and spoke with Bocchicchio. She testified that
she asked him what happened, inasmuch as he appeared to
be happy at work. Bocchicchio replied that he liked Ken-
nedy, but that he just wished that he had asked him before
he joined the Union.
Mrs. Kennedy asked whether he could reinstate her hus-
band, and Bocchicchio replied that the job had already been
filled.
Bocchicchio testified that he told Mrs. Kennedy that what
occurred was an ‘‘unfortunate situation,’’ and that he liked
Kennedy. He denied speaking with her concerning the
Union.
Analysis and Discussion
a. The alleged interrogations
The complaint alleges that on about three occasions,
Bocchicchio interrogated employees regarding their member-
ship in the Union.
Kennedy implied that the alleged interrogation was
prompted by the incident concerning secretary Lilian. He
stated that he was interrogated by Bocchicchio 10 minutes
after he refused Lilian’s request that he bring blueprints to
an office worker. He refused that assignment on the ground
that his union representative told him that that was not part
of his job. Supervisor Castro was immediately informed of
this incident by Lilian and may have told Bocchicchio about
it.
Bocchicchio overheard drivers speaking about Kennedy
being a member the Union, and he asked a driver about that.
The driver told him that he thought that Bocchicchio knew
about it, to which Bocchicchio replied that he did not. He
immediately called Kennedy and admittedly asked him
‘‘what is this I hear about you joining the Union?’’ He also
265ACME STEEL PARTITION CO.
1 Whether or not Lilian had the authority to order Kennedy to de-
liver the blueprints is irrelevant. The important factor is that this in-
cident apparently came to the attention of Bocchicchio.
told Kennedy that he wished that he would have come to
him first, as his position was not in unit, rather than take it
on himself to go to the Union. Kennedy replied that he was
a member of the Union, and presented his union card, and
the business card of Union Agent Vanderhoef.
The interrogation of employees is not illegal per se. The
standard used in determining whether questioning employees
violates Section 8(a)(1) of the Act is ‘‘whether under all of
the circumstances the interrogation reasonably tends to re-
strain, coerce, or interfere with rights guaranteed by the
Act.’’ Rossmore House, 269 NLRB 1176, 1177 (1984).
The context in which the alleged interrogations occurred is
important. Respondent is a company which has had a collec-
tive-bargaining relationship with the Union for more than 25
years. Kennedy had once asked Bocchicchio about joining
the Union and was told that he was a member of the office
staff and therefore not a member of the bargaining unit. Ac-
cordingly, the question of union membership was raised ini-
tially by Kennedy.
The question arose in one or possibly two ways: as a re-
sult of the incident with Lilian, or as result of Bocchicchio’s
overhearing of a conversation with drivers.
First, Kennedy seems to imply that Bocchicchio’s ques-
tion, coming almost immediately after his confrontation with
Lilian, was prompted by that incident. If that is so,
Bocchicchio had a legitimate interest in learning why Ken-
nedy refused a request by a secretary to deliver blueprints to
an office worker. Kennedy told Lilian that he refused the as-
signment because his union representative told him that he
did not have to deliver blueprints. Accordingly,
Bocchicchio’s question to Kennedy asking ‘‘what is this I
hear about you joining the Union,’’ related directly to Ken-
nedy’s use of his union membership to refuse to perform an
assignment.1 Bocchicchio’s questioning of Kennedy was
proper in determining why Kennedy refused Lilian’s request.
Up until that point, Bocchicchio had not known that Ken-
nedy was a member of the Union, and he could properly
seek an explanation from Kennedy as to his refusal of
Lilian’s request to deliver the blueprints on the ground that
his union agent told him he did not have to do such work.
Under these circumstances it cannot be said that the single
question of Kennedy was coercive or tended to interfere with
his rights under the Act.
Secondly, Bocchicchio’s questioning of a driver as to Ken-
nedy’s union membership took place in the context of a
longstanding collective-bargaining relationship with the
Union, as to which the position of messenger had never ex-
pressly been a part of the bargaining unit. Bocchicchio had
previously told Kennedy that his position was not included
in the unit, and he was understandably surprised when he
heard that drivers were discussing Kennedy’s union member-
ship. The complaint alleges that his questioning of the driver
constituted unlawful interrogation. I do not agree. Boc-
chicchio’s inquiry of the driver as to Kennedy’s union mem-
bership was done in a noncoercive way as a means to obtain
information concerning someone who Bocchicchio believed
could not obtain union membership because his position was
not included in the unit. The noncoercive nature of the ques-
tion is clearly shown in the driver’s response, that he thought
that Bocchicchio knew of Kennedy’s membership. No other
questions were asked of the driver. Accordingly, I cannot
find that the question asked of the driver constituted unlawful
interrogation under the Act.
On hearing the conversation among the drivers concerning
Kennedy’s union membership, Bocchicchio admittedly asked
Kennedy ‘‘what is this I hear about you joining the Union’’?
Kennedy immediately replied that he was a union member
and produced his union card and the business card of Union
Agent Vanderhoef. Bocchicchio’s purpose in asking the
question of Kennedy was not to determine his union interest
or affiliation. Bocchicchio already knew, based on Kennedy’s
earlier request to join the Union, that he was interested in
union membership. Rather, Bocchicchio believed that Ken-
nedy could not obtain union membership because his posi-
tion was not included in the unit. No other questions were
asked of Kennedy. Bocchicchio also gave testimony, which
I credit, that he told Kennedy at that time that he should
have come to him first since his position was not included
in the bargaining unit.
His question of Kennedy was not coercive. It was an at-
tempt to confirm that Kennedy had become a union member
so that that information could be checked with Respondent’s
personnel director. Bocchicchio did that immediately, and
was informed that the position of messenger was not in-
cluded in the bargaining unit. In addition, Kennedy did not
conceal his union membership. He used such membership as
a means to refuse Lilian’s request to deliver blueprints, and
he readily admitted his membership status to Bocchicchio. In
addition, Kennedy earlier asked Bocchicchio when he could
join the Union. The question that Bocchicchio asked, unac-
companied by any threats or coercive comments, was a le-
gitimate question that he could properly ask, once having re-
ceived information that Kennedy was a union member. The
information was obtained so that Respondent’s position con-
cerning his inclusion in the unit, and Respondent’s obligation
to the Union toward him regarding the payment of benefits,
and its obligation to him as a union member regarding the
payment of wages and benefits set forth in the contract,
could be ascertained and verified.
Under these circumstances, I cannot find that the question
asked of Kennedy reasonably tended to restrain, coerce, or
interfere with his Section 7 rights.
b. The alleged violations of Section 8(a)(3) of the Act
The complaint alleges that Respondent imposed more ar-
duous working conditions on Kennedy by subjecting him to
closer supervision and by assigning him more onerous and
additional work than he had previously been assigned. The
complaint further alleges that the disciplinary warning issued
to Kennedy on February 3 violated the Act.
The General Counsel argues that Respondent’s requiring
Kennedy to call the office every hour on February 3 con-
stituted the imposition of more arduous working conditions
because he was required to park his vehicle, find a phone
and call the office, while still being required to perform his
duties as a driver.
It is clear that the requirement that Kennedy call the office
every hour constituted more arduous working conditions than
he had previously. Prior to February 3, he would call the of-
fice when beeped, which was three to four times daily. On
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
February 3, regardless of his location he had to call the of-
fice every hour on the hour. In fact, Kennedy was told that
he must adhere to this requirement even if he was in the
middle of traffic. The fact that the hourly call was reduced
to one call every 2 hours the following day also supports a
finding that Respondent considered it to be onerous. In fact,
Respondent’s witnesses testified that the hourly requirement
was causing Kennedy’s work to be completed in a less time-
ly fashion.
The complaint also alleges that Kennedy’s discharge vio-
lated the Act. The General Counsel argues that Respondent
seized on his failure to make the Williams Construction pick-
up on February 5 in order to discharge him.
The question therefore becomes whether the imposition of
the arduous duties and the written warning of February 3,
and the discharge of February 5 violated the Act.
The General Counsel’s prima facie case is as follows:
Kennedy joined the Union in late January 1991, and Re-
spondent became aware of that fact on January 31. On the
first working day after obtaining knowledge of Kennedy’s
joining the Union, Respondent removed his beeper and re-
quired him to call in every hour.
The extremely close timing between Respondent’s knowl-
edge of Kennedy’s union membership and the events which
occurred in quick succession thereafter, including the require-
ment that he call in so often, his written warning, and his
discharge, lends support to the General Counsel’s prima facie
case.
The General Counsel further argues that animus toward
Kennedy’s union membership may be found in Boc-
chicchio’s earlier statements to him that was not entitled to
union membership because his position of messenger was not
included within the collective-bargaining unit. In addition,
admitted testimony of Bocchicchio that he told Kennedy that
he should have asked him before joining the Union, and he
should not have ‘‘taken it upon himself by joining the
Union’’ also constitutes some evidence that Respondent bore
some animus toward Kennedy’s becoming a union member.
Further, I credit Mrs. Kennedy’s testimony that following her
husband’s discharge, on inquiring about what happened, she
was told by Bocchicchio that he just wished that Kennedy
had asked before joining the Union. I credit her testimony
because she quoted a statement that, in substance,
Bocchicchio admitted saying to Kennedy. Mrs. Kennedy’s
testimony too, provides some evidence that there was a con-
nection between actions taken against Kennedy and his union
activity.
Although I believe that the evidence of union animus is
not particularly strong, I am convinced, particularly because
of the extremely close timing of the events involved here,
that the General Counsel has made a prima facie showing
that Kennedy’s joining the Union was a motivating factor in
Respondent’s decision to impose more arduous working con-
ditions on him, issue a written warning, and discharge him.
Wright Line, 251 NLRB 1083 (1980).
Respondent’s Defenses
1. The imposition of more arduous working conditions
and the warning
Respondent’s evidence is that it removed Kennedy’s beep-
er and imposed the requirement that he call in every hour on
February 3 because he did not respond to his beeper, and
they believed that the beeper was broken.
Castro did not testify as to when he had difficulty receiv-
ing responses to his beeping of Kennedy, but Bocchicchio
testified that this began in mid to late January. It is apparent
that since Respondent considered communication with its
messenger so important, as testified by Respondent’s offi-
cials, that it would have taken immediate action to have the
beeper fixed immediately or impose a calling requirement
upon Kennedy.
Kennedy credibly testified that he was spoken to only
once, about 2 months before he joined the Union, concerning
his alleged failure to respond to his beeper, and no action
was taken against him at that time. If this had been a regular
occurrence, Respondent would undoubtedly have taken more
prompt action to ensure a more reliable means of commu-
nication with him.
Nevertheless, no such action was taken until it became
known that Kennedy joined the Union. What occurred then
was inappropriate to the problem. Whereas prior to his join-
ing the Union, Kennedy called the office only when beeped,
three to four times per day, he was now required to call the
office every hour on the hour regardless of his location. That
Respondent itself considered this requirement odious is borne
out in its reduction of this requirement to a call every 2
hours imposed the following day.
Where the requirement of calling every hour was admit-
tedly difficult as Kennedy was also required to perform his
delivery duties, nevertheless Respondent disciplined him for
not calling every hour. Kennedy testified that he did call
every hour, but could not reach Castro until the afternoon,
and then only one time. There was much testimony by Re-
spondent’s witnesses that Kennedy could not have called
every hour because of the availability of telephone lines and
paging services. However, as Respondent itself considered
the requirement that he call every hour difficult, its imposi-
tion of a warning for his failure to do so seems particularly
inappropriate.
Under these circumstances, particularly where Respondent
was aware of Kennedy’s alleged failure to respond to his
beeper prior to his joining the Union and took no action con-
cerning that, I find and conclude that Respondent has failed
to demonstrate that it would have taken the same action
against Kennedy in the absence of his union activities.
Wright Line, supra.
I accordingly find and conclude that Respondent’s imposi-
tion of more arduous working conditions on Kennedy, his
subjection to closer supervision by the requirement that he
call in every hour, by the assignment to him of more onerous
and additional work than he had previously been assigned,
and the issuance of a written warning to Kennedy on Feb-
ruary 3, 1992, violated Section 8(a)(3) and (1) of the Act.
2. The discharge
Respondent discharged Kennedy for insubordination for
failing to pickup plans or blueprints at Williams Construction
Company on February 5.
Respondent argues that the Williams pickup was very im-
portant as it involved plans for a job that Respondent was
bidding on. Kennedy admitted that at 1 p.m. he was told by
Supervisor Castro that it was important that the Williams
plans be picked up that day.
267ACME STEEL PARTITION CO.
At that time, Castro instructed Kennedy to make the bank
pickup first and then make four other stops, working his way
uptown. Pursuant to this procedure, the Williams pickup
would be the last one made, as it was the farthest uptown.
At 3:30 p.m., Kennedy had made all the stops except Wil-
liams, and called the office from a location 19 blocks from
Williams.
In that phone call, Kennedy told Bocchicchio that he was
unable to make the Williams pickup because traffic was con-
gested, and due to the mail work he had to do when he re-
turned to the office, he would be late for his religious meet-
ing. Bocchicchio insisted that the Williams plans be picked
up. Kennedy offered to make the Williams pickup the next
morning. Kennedy again conceded that Bocchicchio told him
that it was important that the Williams plans be picked up
that day, and he refused to do so.
I do not believe, as the General Counsel suggests, that Re-
spondent seized on Kennedy’s failure to make the Williams
pickup to discharge him.
The evidence establishes that Kennedy was requested to
make the Williams stop on February 5. He concedes that he
was told at least by 1 p.m. that it was important that he make
that stop that day. By 3:30 p.m., only that stop remained to
be done. At that point he was only 19 blocks from the Wil-
liams stop and was again told that he must make that stop,
and further conceded that he was again told of the impor-
tance of obtaining the Williams plans that day.
Nevertheless, Kennedy refused to make the Williams pick-
up, claiming an inability to do so because of traffic conges-
tion, and his need to return to the shop in enough time to
do the mail and leave so that he would be in time for his
religious meeting.
Assuming traffic was, in fact, congested, and he had made
the Williams stop as instructed, he could have, but did not
ask to be relieved of his mail duties. I am aware that
Bocchicchio did not offer to relieve Kennedy of those re-
sponsibilities, but he may have done so once Kennedy re-
turned to the shop with the Williams pickup. Bocchicchio
some time before had changed Kennedy’s hours of work to
accommodate his meeting nights and may have been ame-
nable to releasing him of his mail duties that evening for the
same reason.
The General Counsel argues that it was unreasonable for
Respondent to insist that Kennedy make the Williams pickup
for the following reasons: (a) Respondent knew that that
evening was his meeting night and it had agreed on his hire
that he not be assigned overtime work on those evenings; (b)
Kennedy agreed to make the Williams pickup the following
morning, which was a practice he had followed previously;
and (c) the pickup was not as urgent as claimed since Ken-
nedy was told in the morning to transport Teich and not
make the pickup.
As to (a), although Respondent was aware that the evening
involved was Kennedy’s meeting night, it was not so unrea-
sonable for Respondent to insist that he make the Williams
stop that day. Considering Kennedy’s location, only 19
blocks from the stop, and the time of the call, only 3:30
p.m., it was quite reasonable for Respondent to demand that
Kennedy make the pickup. Particularly considering that Ken-
nedy’s quitting time was 4:30 p.m., and it took less than 30
minutes for him to return to Respondent’s office, it appeared
that Kennedy would be able to at least return to work before
his quitting time so that he could timely attend his meeting.
In this connection, I am aware that Kennedy testified that
the extent of the traffic congestion was such that, assuming
that he completed his mail duties, he could not leave the of-
fice until about 7:30 or 7:45 p.m. In their phone conversation
at 3:30 p.m., Bocchicchio did not tell Kennedy that on his
return to the office he must perform his mail responsibilities
before he left for the day. However, by not making that stop,
Kennedy foreclosed Respondent from considering relieving
him of his mail responsibilities. It should also be noted that
Kennedy left work as late as 5:32, 5:42, and 6 p.m. on his
meeting nights in the past.
As to (b) and (c), Kennedy was admittedly told twice that
day of the importance of the Williams plans being picked up
that day. Although his prior practice was to make
uncompleted stops the following morning, nevertheless he
was given direct instructions to make the pickup that day.
Thus, his prior practice was countermanded by a proper
order to pick up the plans that day. Whatever Kennedy’s
prior practice had been, on this occasion he was given a di-
rection to make the pickup that day. This he failed to do.
Similarly, although Kennedy was told in the morning not
to make the pickup because he had to drive Teich to Manhat-
tan, nevertheless, at least by 1 p.m. the urgency of the stop
became known to him.
In sum, it appears that Kennedy simply determined that he
was not going to make the Williams stop. Respondent did
not act unlawfully in refusing to tolerate that behavior. The
apparent alteration of the manifest to include the letters
‘‘ASAP’’ next to the Williams entry was improper, unfortu-
nate, but irrelevant as Kennedy was told that he must pickup
the plans that day. The alteration is not fatal to Respondent’s
defense.
I accordingly find and conclude that Respondent has estab-
lished that it would have discharged Kennedy in the absence
of his union activities. Wright Line, supra. I will therefore
recommend that the allegations of the complaint alleging his
unlawful discharge be dismissed.
CONCLUSIONS OF LAW
1. Respondent, Acme Steel Partition Co., Inc., is an em-
ployer engaged in commerce within the meaning of the Sec-
tion 2(2), (6), and (7) of the Act.
2. Truck Drivers Local Union No. 807, International
Brotherhood of Teamsters, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By imposing more arduous working conditions upon its
employee Joseph Kennedy, by subjecting him to closer su-
pervision and by assigning him more onerous and additional
work than he had previously been assigned, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
4. By issuing a written disciplinary warning on February
3, 1992, to its employee Joseph Kennedy, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Respondent has not violated the Act, as alleged in the
complaint, by discharging and failing and refusing to rein-
state its employee Joseph Kennedy.
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3 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
National 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.’’
7. Respondent has not violated the Act, as alleged in the
complaint, by interrogating its employees regarding their
membership in the Union.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Acme Steel Partition Co., Inc., Brooklyn,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Imposing more arduous working conditions on its em-
ployees by subjecting them to closer supervision, and by as-
signing them more onerous and additional work than they
had previously been assigned, in violation of Section 8(a)(3)
and (1) of the Act.
(b) Issuing written disciplinary warnings to its employees
in violation of Section 8(a)(3) and (1) of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the disciplinary warning issued to Joseph Ken-
nedy on February 3, 1992.
(b) Post at its facility at 513 Porter Avenue, Brooklyn,
New York, copies of the attached notice marked ‘‘Appen-
dix.’’3 Copies of the notice, on forms provided by the Re-
gional Director for Region 29, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT imposing more arduous working conditions
on our employees by subjecting them to closer supervision,
or by assigning them more onerous and additional work than
they had previously been assigned in violation of Section
8(a)(3) and (1) of the Act.
WE WILL NOT issue disciplinary warnings to our employ-
ees in violation of Section 8(a)(3) and (1) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL rescind the disciplinary warning issued to Joseph
Kennedy on February 3, 1992.
ACME STEEL PARTITION CO., INC.