Container Corp. Of America

National Labor Relations Board - Board DecisionsDec 31, 1985

277 N.L.R.B. 1398 (N.L.R.B. 1985)

1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Container Corporation of America and Bill Young. Case 9-CA-21589 31 December 1985 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 19 July 1985 Administrative Law Judge James T. Youngblood issued the attached decision. The Charging Party filed a letter excepting to the judge's decision, and the Respondent filed a letter contending that the Charging Party's letter does not comply with Section 102.46(b) and (j) of the Board's Rules and Regulations.' 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 has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I Given our disposition of this case, we find it unnecessary to address Respondent's procedural claim. Mark G. Mehas, Esq. and Jack V. Baker, Esq., for the General Counsel. Willis S. Ryza, Esq., of Chicago, Illinois, for the Re- spondent. DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge. This case was tried at Louisville, Kentucky, on 14 March 1985. The charge was filed by Billy Young on 21 December 1984 and the complaint issued on 30 January 1985 and was amended at the hearing. The primary issue is whether Container Corporation of America (Respond- ent) threatened its employees with loss of overtime as- signments if they filed grievances, in violation of Section 8(a)(1) of the Act. On the entire record, including my observations of the witnesses and their demeanor while testifying, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following' ' The facts found herein are a compilation of the credited testimony, the exhibits, and stipulations of fact, viewed in light of logical consisten- cy and inherent probability Although these findings may not contain or refer to all the evidence, all has been weighed and considered To the extent that any testimony or other evidence not mentioned in this deci- sion may appear to contradict my findings of fact, I have not disregarded that evidence but have rejected it as incredible, lacking in probative FINDINGS OF FACT I JURISDICTION Respondent, a Delaware corporation with an office and place of business in Louisville, Kentucky, is engaged in the manufacture of corrugated cartons and related products. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The Charging Party, Billy Young, has worked for Re- spondent for approximately 29 years. Prior to Young's becoming a forklift operator on 14 January 1985, he had worked as a truckdriver for the Respondent for approxi- mately 10 years. Young is currently a trustee and member of the grievance and negotiating committee of Local 1048, United Paperworkers, International Union, AFL-CIO (the Union) the collective-bargaining repre- sentative of the Respondent's employees. In the past, Young served as president of the Union for approximate- ly 6 years. It appears that at the Respondent's facility, when over- time work is needed in the production area, truckdrivers are sometimes offered the opportunity to work overtime in the production area provided they are able to perform the work. On one such occasion in the last week of August 1984 Young was working overtime in the band- saw department after having finished his truckdriving duties. It appears that he ran out of stock for his machine and was looking for Roger Nicholson, the employee who delivered stock to the machines. In his search for Nicholson, Young was told by another employee that Nicholson was outside moving trailers. According to the testimony of Young, this struck him as unusual because when a truckdriver is working in the plant, the truck- driver is supposed to move the truck trailers in the plant yard. According to Young, this is a violation of article 16, section 6 of the supplemental agreement between the Respondent and the Union. According to the testimony of Young, the next morn- ing in the presence of several truckdrivers as well as Union Steward Otto Widdell Jr. and Supervisor Joe Brown, Young told those assembled that "it didn't make sense in what they did last night, of using somebody else to spot trailers." Young explained that he felt it was unfair and he could not understand why the Respondent had let a machine go down and use someone of classifi- cation to move the trailers. Young testified that he later talked to Union Steward Otto Widdell and asked Widdell if he thought that they had a grievance. Widdell informed Young that he would check with Joe Brown, the immediate supervisor, to see if a grievance would lie. Several days later Young asked Widdell if he had checked with Brown, and Widdell said that they would not want to write a grievance after what weight , surplusage , or irrelevant Credibility resolutions have been made on the basis of the whole record , including the inherent probabilities of the testimony and the demeanor of the witnesses Where it may be re- quired , I will set forth specific credibility findings 277 NLRB No. 161 CONTAINER CORP. OF AMERICA Brown told him. Widdell said Brown stated, "If they write a grievance, there goes their overtime." Young tes- tified that this occurred on 3 September 1984 because he wrote down the incident in his driver's logbook on that date. According to Young, after Widdell's comment he did not file a grievance He further testified that before this incident, other grievances had been filed over the use of employees, other than truckdrivers, to "spot" trailers. Otto Widdel Jr., the union steward, testified that around the latter part of August 1984 he was present when Billy Young approached Supervisor Joe Brown and asked him about someone moving trailers the night before. He said truckdrivers Joe Carney, Tommy Brown, and Arnold Vest were also present. He stated that Young asked Brown why someone was brought out of the plant to spot trailers when he and Joe Carney were available to do this. Widdell testified that later he was approached by Billy Young and Joe Carney and they asked him to file a grievance over the trucks being spot- ted by someone other than a truckdriver. Widdell testi- fied that he told them that they would have to talk to the supervisor before filing the grievance. He stated that later that day he talked to Supervisor Joe Brown in the shipping office about this grievance and Widdell stated that Brown leaned back in his chair and said, "Well, there goes their overtime." Widdell stated that the next morning he informed Young and Carney that they prob- ably would not want to file a grievance on this issue be- cause he had talked to Joe Brown about it and he had said, "There goes their overtime." He stated that no grievance was filed over this matter. Supervisor Joseph Brown testified that he has worked at the Louisville plant for over 31 years, and when he was an hourly. rated employee he belonged to the Union, was on the Union's negotiating committee, and held the office of union treasurer. He testified that he has had many conversations with Young, Widdell, and other truckdrivers concerning the spotting of trailers by non- drivers. In the past, grievances concerning the spotting of trucks have also been presented to him and that con- versations dealing with this were not unusual. Brown further testified that he did not have a present recollec- tion about any particular conversation concerning spot- ting with Widdell or Young in August or September 1984, but did not deny that such a conversation may very well have occurred. Brown, however, did specifi- cally deny telling Widdell or any other employee that he would deprive the drivers of overtime work if a griev- ance was filed about the spotting of trailers. He testified that in the past year, prior to September 1984, he was presented with about 50 grievances and, as far as he was concerned, another grievance would not make any dif- ference. As indicated, Young did not file a charge over this in- cident. However, on 26 October 1984, the compliance supervisor for Region 9 of the National Labor Relations Board wrote a letter to Young advising him that it ap- peared that the Respondent had complied with the court order in the 1978 bulletin board case and that the case 1399 would be closed unless Brown presented evidence of noncompliance by 2 November 1984.2 In response to the letter by the compliance supervisor, Young apparently wrote the Board detailing certain facts which caused the Board to prepare the instant charge and mail it to Young for his signature. Young testified that he received the charge 3 or 4 days befoie he signed it. On 18 December 1984 he signed the charge and re- turned it to the National Labor Relations Board. That charge is dated 21 December 1984. Although that charge makes no specific reference to the threat of denial of overtime which supposedly occurred around 1 Septem- ber 1984, the charge does specify that about 1 November 1984 and for several months previous the Respondent "threaten [ed] to eliminate all his overtime assignments if he filed a grievance." Based on that charge and the sup- porting affidavits, which do not refer to the alleged threat of 1 September 1984, the General Counsel issued this complaint on 30 January 1985. It appears that Charging Party Young was one of five truckdrivers employed by the Respondent and that he was the most junior of the five drivers. On 18 December 1984, the Respondent met with the union negotiating committee which consisted of four company employees, including Charging Party Billy Young. The Respondent was represented by Plant Superintendent John Brooks and plant Manager William Burn. At this meeting, the Respondent announced to the union committee that it would have to take one of its trucks out of operation be- cause it was no longer in proper working condition and it was too expensive to repair the truck and that the Company did not have the available capital to replace the truck. This meant that the Company would then be operating with four trucks only, needing only four driv- ers, and that Charging Party Billy Young would be put into production. The Union objected, but it appears that the Company went through with its plan and the Charg- ing Party was transferred to a production job and at the time of the hearing was engaged as a forklift operator. It was after this meeting that Charging Party Billy Young signed and forwarded the current charge to the Regional Office, which was the predicate for this complaint and this proceeding. The complaint initially alleged that the threat involved herein was made on 1 November 1984. At the hearnig, the General Counsel amended the complaint to read that the threat was made on 1 September 1984. This came about as a result of Charging Party Billy Young review- ing his notes on the morning of the hearing and finding out at that time that his notes indicated that the alleged threat was made on 1 September 1984 rather than 1 No- 2 This reference to a court order, related to a decision by the Sixth Circuit in NLRB v. Container Corp of America, 649 F.2d 1213 (1981), dis- missing an 8(a)(1) finding dealing with Charging Party Young and the Respondent because the court, viewing the record as a whole, did not find substantial evidence to support the administrative lain judge's credi- bility findings , essentially because Young was an interested charging party and his testimony was uncorroborated The court noted that there was testimony in the record to support the testimony of the plant super- visor that Young disliked him because of a dispute over issuing warnings to employees, and that Young had threatened "to get" the supervisor the very day before he filed the charge 1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vember 1984. Employee Otto Widdell, who testified that the alleged threat was made to him by Supervisor Joseph Brown, stated that he was informed on the morning of the hearing that Billy Young's notes indicated that the date was 1 September 1984, and that was how he placed the date. His affidavit, given on 2 January 1985, indicat- ed that the alleged date was 1 November 1984. The record reflects that Charging Party Billy Young informed other hourly rated employees that he was going to break Shipping Supervisor Brown from "suck- ing eggs. Meaning that he was going to teach him a lesson. Also during this period, the Charging Party ad- mitted that he talked to other employees and, in refer- ence to Supervisor Brown, stated that he wondered "if he's gotten down to the pepper yet." Meaning that he wonders that if he has made his point and that the super- visor had learned his lesson." Discussion and Conclusion The only issue in this matter is whether or not Super- visor Brown told Union Steward Widdell that if Charg- ing Party Young filed a grievance over a nondriver em- ployee spotting trucks he would suffer a loss of over- time. If Brown made such a threatening statement, it is clearly a violation of Section 8(a)(1) of the Act, even 'though this is the only instance of unlawful conduct. The right to file grievance is a basic statutory right and any threat to impair this right has an adverse and far-reach- ing effect. Therefore if this threat was made, it cannot be construed as isolated and I must issue a remedial order. See General Motors Corp., 232 NLRB 335 at 335 (1977), and Inner Lakes, Inc., 218 NLRB 1043 (1975). The Respondent argues that I cannot rely on the testi- mony of either Young or Widdell because of the circum- stances of this case and the prior Sixth Circuit decision involving employee Young and another supervisor of the Respondent. The Respondent also points to the fact that the charge in this matter was not filed until after Young learned that he would no longer be classified as a truck- driver, but would be doing production work. And that thereafter Young threatened that he would teach Brown a1esson . The Respondent also points to the fact that the initial charge and complaint alleged that the conduct herein occurred on 1 November 1984, and at the hearing the charge was amended to reflect that conduct occurred on 1 September 1984. This amendment was brought about by Young's reviewing his notes and learning that the incident occurred on 1 September not 1 November. This also precipitated a change in the testimony of Wad- dell who had given an affidavit in January 1985 stating that the incident occurred on 1 November 1984. The Re- spondent argues that this situation presents a sufficient number of questions which negate a finding of substantial evidence on the part of the General Counsel and requests that the complaint be dismissed. Were this simply a matter of crediting or not crediting the testimony of Young, the case would be relatively easy. However, this is not that situation. Although the Respondent argues that Young persuaded Widdell to tes- tify as he did, I cannot make such a finding on the record as presented here. It is true that Widdell's testi- mony, at least as regards the dates, was based on infor- mation supplied to him by Young. However, the fact that Widdell was supplied the date, does not mean that he was also supplied with the actual statements. He testi- fied that whatever date it was September, October, or November that Brown did in fact threaten loss of over-, time for the filing of grievances. On the other hand, Supervisor Brown testified that he had no independent recollection of a conversation with Widdell concerning the spotting of trailers, but did state he probably did have such a conversation because this is a subject which frequently arises when the drivers work overtime and other employees are used to spot trailers. He said that this would not be the first time that this was raised and that grievances have been filed over this matter. He did in fact state that he did not threaten anyone with loss of overtime because they intended to file a grievance over this matter. Thus, we have a conflict in the testimony between Widdell and Supervisor Brown, both interested wit- nesses, and I find no basis in this record or on the de- meanor of the witnesses to conclude that the General Counsel's witness , Widdell, is a more credible witness than the Respondent's witness, Supervisor Brown. Under the circumstances of this case, as the General Counsel's witness is no more credible than the Respond- ent's witness, and as there is no other convincing evi- dence to support the General Counsel's contention, and in view of the record as a whole, I conclude that the General Counsel has failed to establish by a preponder- ance of the evidence that the Respondent has violated the Act as alleged in the complaint, as amended. See Bethel Home, 275 NLRB 154 (1985). Therefore the com- plaint is dismissed in its entirety. CONCLUSIONS OF LAW The Respondent did not violate the Act in the manner alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The complaint is dismissed in its entirety, 3 It appears that in this part of the country when a dog sucks eggs, 4 If no exceptions are filed as provided by Sec 102 46 of the Board's pepper is put in the egg to prevent the dog from sucking eggs again Rules and Regulations, the findings, conclusions, and recommended That is, when he reaches the pepper he does not suck eggs again This is Order shall, as provided in Sec 102.48 of the Rules, be adopted by the the basis for the term, "I wonder if he has gotten down to the pepper Board and all objections to them shall be deemed waived for all pur- yet." poses