Roadway Express

National Labor Relations Board - Board Decisions

Feb 17, 1984

268 N.L.R.B. 982 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadway Express, Inc. and Konstantine Petros.
Case 8-CA-14982-2
17 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 20 September 1982 Administrative Law
Judge Karl H. Buschmann issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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,' and
conclusions and to adopt the recommended Order.
In adopting the judge's conclusion that the Re-
spondent violated Section 8(a)(1) of the Act by re-
moving the bulletin boards from two breakrooms
used by employees, we rely on the following: On
29 January 1981 employee Konstantine Petros
posted a notice on a breakroom bulletin board
which protested the Respondent's use of produc-
tion cards and proposed a resolution which, if it
had been accepted, could have resulted in a strike.
The Respondent removed the notice for the stated
reason that the bulletin boards were to be used for
official business only. The judge found, however,
that the bulletin boards had been used for other
purposes, including the posting of union literature
for 6 years. Petros filed an unfair labor practice
charge regarding the Respondent's action. On 23
April 1981 after Petros withdrew his charge, he
posted notices on the breakroom bulletin boards
concerning internal union matters. The Respondent
removed all bulletin boards from the breakrooms
on 26 April 1981. When Petros questioned the re-
moval of the bulletin boards, the Respondent's ter-
minal manager, Ivan Hoffmann, admitted in an ap-
parent reference to the 29 January incident that he
did not want any material posted on the bulletin
board which created problems such as strikes
against the Respondent. Despite this admission, the
Respondent asserts that it removed the boards on
26 April because threatening and obscene messages
appeared on the boards. We agree with the judge's
conclusions that this was a convenient reason to
I The Respondent has excepted to some of the judge's credibility find-
ings. 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 findings.
268 NLRB No. 153
mask the Respondent's true motive, i.e., to prevent
the posting of union-related materials. Thus, the
Respondent's January 1981 action in removing and
prohibiting the posting of TDU or union materials
in conjunction with Hoffmann's statement about
the removal of the bulletin boards in April and the
timing of the removal of the bulletin boards em-
phasize that the Respondent's proffered reasons for
removing the bulletin boards were pretextual.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Roadway
Express, Inc., Toldeo, Ohio its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order, except that the attached notice is sub-
stituted for that of the administrative law judge.
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 has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT prohibit or prevent the posting of
any union material by removing bulletin boards
from the employees' breakrooms or by any other
means.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL replace the bulletin board in each of
our employees' breakrooms, expressly permitting
the posting of TDU or any other union-related ma-
terial.
ROADWAY EXPRESS, INC.
982
ROADWAY EXPRESS
DECISION
KARL H. BUSCHMANN, Administrative Law Judge:
This case was tried at Toledo, Ohio, on June 14, 1982.
The charges were filed on August 11, 1981, by Konstan-
tine Petros, an individual. The complaint issued on Janu-
ary 21, 1982. The issue is whether the Respondent violat-
ed Section 8(a)(l) of the National Labor Relations Act
(the Act) when it removed the bulletin boards from two
breakrooms used by the employees.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after consideration of
the briefs filed by the parties, I make the following
FINDINGS OF FACT
The Company, a Delaware corporation, is a common
carrier of general motor freight. One of its terminals
which is the subject of this proceeding is located in
Toledo, Ohio. The Respondent is admittedly an employ-
er within the meaning of Section 2(6) and (7) of the Act.
The Union, the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 20, has been the bargaining representative
of the Respondent's hourly employees. The bargaining
agreement provided for a union bulletin board at the
workplace. Accordingly, the Company maintained two
bulletin boards. They were locked and glass enclosed.
One was for official company business and the other for
union business. However, in addition to these bulletin
boards, the Company maintained a bulletin board in each
of the Company's breakrooms, the inbound breakroom
and the breakroom on the outbound dock. These bulletin
boards which had been in use for about 6 years were
used by the employees for general news items, such as
notices of upcoming events, items for sale, or meetings.
The boards were also used to post union literature.
Konstantine Petros, a 10-year veteran on the Respond-
ent's work force, had used these bulletin boards from
time to time for union business. He was not only a
member of Local No. 20, but he was also a member of
Teamsters for a Democratic union, "TDU." In that ca-
pacity, he had used the boards for approximately once a
month since March 1980 for the posting of TDU materi-
al. These postings advocated membership in TDU or in-
formed employees of their legal and contractual rights.
The material was sometimes marked "TDU," but it did
not advocate any illegal or hostile action.
On or about April 26, 1981, the Respondent removed
the bulletin boards in each of the breakrooms. According
to the Respondent, the boards were removed because
they contained objectionable and threatening messages
directed at the Company's terminal manager, Ivan Hof-
mann. The General Counsel, on the other hand, argues
that the Respondent's motives were pretextual, and that
the real reason for the Respondent's action was animus
against Petros' union activity involving the TDU.
In this regard, the record shows that several months
earlier on January 29, 1981, Petros had posted a docu-
ment (J. Exh. 1) on the bulletin boards in the break-
rooms, which protested the Respondent's practice in-
volving the use of production cards. The posting was in
form of a resolution which, if accepted by the member-
ship, could have resulted in a sanctioned strike. Paul
Ray, the terminal operations manager, looked at the
notice shortly after its posting, read it, and removed it
from the board. He later explained to Petros that he had
removed the notice, because the bulletin boards were to
be used for official company business only. Petros ap-
pealed this action to Dean Schuler, the assistant terminal
manager. Schuler, however, agreeing with Ray, merely
confirmed management's position that the boards were
company bulletin boards which should be used for offi-
cial company business only.
Petros then contacted John Kilroy, an attorney, who
considered the Company's action to be unlawful. He
promptly filed a charge with the Board on behalf of
Petros on February 27, 1981. Subsequently, Petros with-
drew the charge because he had learned from Kilroy
that a settlement had been reached whereby the Re-
spondent had agreed to the posting of TDU material so
long as it was clearly identified as TDU literature. On
April 23, the Company was officially notified of the
withdrawal of the charges.
On April 23, 1981, Petros posted notices on the break-
room bulletin boards calling for the defeat of a union
bylaws' amendment. Petros informed Ray that he had
posted the documents and referred to the agreement be-
tween attorney Kilroy and the Company permitting the
posting of clearly marked TDU material. Ray, however,
stated that he was unaware of any such agreement. Two
days later, Petros noticed that the entire bulletin boards
had been removed from the breakrooms. Petros and
fellow employee Emmit Hudson approached Ivan Hoff-
man, and asked him why the bulletin boards had been re-
moved. Hoffman replied that he was a stockholder in the
Company, and that he did not want any material posted
on the bulletin boards which caused problems or called
for strikes against Roadway Express. He also stated that
he did not want to see statements posted on the bulletin
boards such as "Ivan sucks" or "Ivan you are next," in
reference to him.
The record contains examples of such obscene and
threatening messages directed at Ivan Hoffman. He had
become the manager at the Toledo terminal in the fall of
1979. After the facility had been unprofitable, Hoffman
had improved the profit picture by more aggressive lead-
ership and management techniques. This caused tension
between him and the employees. Slogans, such as "Ivan
sucks," became commonplace on walls in the bathroom
or on cartons. Occasionally such material also appeared
on the breakroom bulletin boards. Hoffman testified that,
while touring the docks during the last week in April
1981, he noticed a newspaper article on the bulletin
boards in the breakrooms. The article reported the kill-
ing of a supervisor as a result of a labor dispute. Under-
neath the article, someone had written "Ivan you're
next." This infuriated him to the point of tearing the arti-
cle off the board and ultimately ordering the bulletin
boards removed entirely. In the words of the Respond-
ent, it was "the straw that broke the camel's back," after
tolerating similar slogans over a period of time.
I have credited the Respondent's testimony that such
an article with the threatening note had actually ap-
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
peared on the boards to the obvious annoyance of Hoff-
man. At first blush, therefore, the Respondent's action
appeared plausible. However, consideration of the entire
record leads to the only inference that the removal of
the bulletin boards was actually motivated by union
animus.
Understandably, the Respondent would have attempt-
ed to stop the posting of threatening or obscene material.
However, the record shows that the grafitti appeared not
only on the bulletin boards but also on bathroom walls
or cartons. The removal of the boards would therefore
not have had the desired effect of stopping the scrawling
of similar messages in other areas of the Respondent's fa-
cility. While it is true that the Respondent had no duty,
in the first place, to provide bulletin boards for the use
of the employees, since it maintained the bulletin board
under lock and key for union business in accordance
with the bargaining agreement, the Respondent may not
interfere with the protected activities of its employees.
Once having provided the bulletin boards in the break-
rooms and letting the employees use them for their union
activities for several years, the Respondent interfered
with the protected activities of its employees when it re-
moved the boards in order to prevent the posting of
TDU material. It was not denied by the Respondent that
Supervisor Ray had removed the TDU material in Janu-
ary and that Ray and Schuler had, in effect, prohibited
the posting of union material at that time. It was also not
denied that the bulletin boards were removed in April, 2
dyas after Petros had again posted TDU material. Hof-
mann's explanation' that as a stockholder in the Compa-
ny he did not appreciate postings which created prob-
lems for his Company, such as strikes, constituted an ad-
mission that the boards had been removed in direct re-
sponse to Petros' union activity. Considering the timing
of the Respondent's action in relation to Petros' union
activity of posting the article in April, and the Respond-
ent's earlier prohibition of posting TDU or union materi-
als, as well as Hoffman's explanation, I can only infer
that the Respondent's true motives were union related,
and that the obscene and threatening material provided
the Respondent with a convenient but disingenuous
reason to remove the bulletin boards. I, therefore, find
that the Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Roadway Express, Inc., is admit-
tedly an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
I I have credited Petros' testimony in this regard which was corrobo-
rated by Hudson.
Local No. 20, is admittedly a labor organization within
the meaning of Section 2(5) of the Act.
3. By removing bulletin boards in order to prohibit the
continued posting of union material, the Respondent
interfered with the protected activities of the employees
in violation of Section 8(a)(1) of the Act.
REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. I shall order
that the Respondent post a notice and that it replace the
bulletin board in each of the breakrooms.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER 2
The Respondent, Roadway Express, Inc., Toledo,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting or preventing the posting of union ma-
terial by removing bulletin boards from the breakroom of
the employees or by any other means.
(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) Replace the bulletin board in each of the employ-
ees' breakrooms, expressly permitting the posting of
TDU or other union-related material.
(b) Post at its facility in Toledo, Ohio, copies of the
attached notice marked "Appendix."3 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
2 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.
I 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
984