Roadway Express, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 975 (N.L.R.B. 1980)

RO)ADVVAY EXPESS, INC 975 Roadway Express, Inc. and John E. Kloiber. Case 3-CA-9157 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELL O, AN) TRUESDAE On March 5, 1980, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 Respondent has excepted to certain credibility findings made by theAdministrative Law Judge. It is the Board's established policy not tooverrule an administralive law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con-vinces us that the resolutions are incorrect Standard Dry Wall Products,Inc., 91 NLRB 544 11950), enfd 188 F.2d 362 (3d Cir. 1951). We havecarefully examined the record and find no basis for reversing his findings. In the absence of exceptions thereto. we adopt, pro forma, the Adminis-trative Law Judge's conclusion that Respondent did not violate Sec8(a)(1) by refusing Kloiber's request for union representation during a meeting on June 8, 1979. 2 The Administrative Law Judge. in concluding that Respondent vio- lated Sec 8(aXI) of the Act by denying employee Kloiber's request for aunion representative, referred throughout his Decision to the meetingwith Supervisor Peters on March 28, 1979. as a "disciplinary" interview. In adopting the Administrative Law Judge's finding of this violation, Members Jenkins and Truesdale emphasize that it is clear from the record and the Administrative Law Judge's Decision that at the March 28 interview Supervisor Peters went beyond merely informing Kloiberof. or imposing on him, previously determined discipline. See their opin-ion in Baton Rouge Water Works Company, 246 NLRB No 161 (1979) Member Penello agrees that employee Kloiber was entitled to the pro-tection of N.L.R.B. . J. Weingarten. Inc., 420 US. 251 (1975). but points out that as he previously stated in Louisiana Council No. 17. AFSCME, AFL-CIO, 250 NLRB No. 72. fn. 42 (1980), and in his dissenting opinion in Baton Rouge, supra, he recognizes no meaningful distinction between an employee's right to union representation at an "investigatory" inter- view as opposed to a "disciplinary" interview. s In his recommended Order, the Administrative Law Judge provided that Respondent strike and physically expunge from its records the sus-pension notice given to Kloiber However, the Administrative LasJudge omitted from his recommended Order the requirement that Re-spondent also strike and physically expunge from its records any refer-ences to Kloiber's suspension, although he included such language in hisproposed notice. We shall modify the Administrative Law Judge's rec- ommended Order to provide for interest on the backpay award. Members Penello and Truesdale find that the remedies of backpay andexpunction of the suspension notice and the references thereto from Re-spondent's records are appropriate under the standards recently set forth in Kraft Foods. Inc.. 251 NLRB No 6 (1980). Thus. they note that in theinstant case the General Counsel has established that an interrieow in iii-lation of Weingarten, upra, occurred and that Kloiber receied a 3-daysuspension for conduct which as the subject of the interview, and Re- spondent has not met its burden of demonstrating that its decision to dis- 251 NLRB No. 138 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent. Roadway Express, Inc., Tonawanda, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Strike and physically expunge from its files and records the suspension notice given to John Kloiber on April 4, 1979, and any references there- to." 2. Substitute the following for paragraph 2(b): "(b) Make whole John Kloiber for loss of wages during the 3-day suspension imposed upon him in April 1979, in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). " 4 3. Substitute the attached notice for that of the Administrative Law Judge. cipline Kloiber uwas not h ased on an) information obtained at that inte r- Member Jenkins agrees that such remedies are appropriate hereit inas-much as it has been established that Kloiber was disciplined for conductwhich was the subject of the unla ful interview See his dissenting opin- ion in Kraft Foods. supra. 4 Member Jenkins would award interest on the backpay due in accord- ance with his partial dissent in Olympic Medical Corporation. 250 NLRB No. II (1980). APPENDIX NOTICE TO EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT issue any notice of disciplin- ary action or require any employee to take part in an interview or meeting where the em- ployee has reasonable grounds to believe that the matter to be discussed may result in his being subject to disciplinary action and where we have refused that employee's request to be represented at such a meeting by a labor orga- nization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. Roadway Express, Inc. anld John E. Klber. Case ROADWAY~~~ EXRS. 7 A -r 97h I)ECISIONS OF NATIONAL. L.ABOR RELATIONS BO)ARI) WL. WIl.. strike and physically expunge from our files and records all papers and other references to the April 4, 1979, suspension notice given to employee John Kloiber. WE Will. reimburse John Kloiber for loss of wages during the 3-day period of suspension imposed upon him in April 1979, with interest. ROADWAY EXPRESS, INC. DECISION STATE MENT OF THE CASE THOMAS A. RIccl, Administrative Law Judge: A hear- ing in this proceeding was held at Buffalo, New York, on January 7, 1980, on complaint of the General Counsel against Roadway Express, Inc., here called the Respond- ent or the Company. The complaint issued on July 13, 1979, upon a charge filed on June 13, 1979, by John Kloiber, an individual, here called the Charging Party. The question involved is whether the Respondent violat- ed Section 8(a)(1) of the National Labor Relations Act, as amended. A brief was filed by the General Counsel after the close of the hearing . Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Roadway Express, Inc., a Delaware corporation, is a common carrier engaged in the business of providing and performing interstate shipment of general commodities. One of its terminals is located in Tonawanda, New York, the only location involved in this proceeding. Annually from this one terminal the Respondent trucks materials valued in excess of $1 million between the State of New York and other States. I find that the Respondent is en- gaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVEI) I find that Local 375, Truckdrivers, Helpers and Dockmen of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, here called the Union, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Case in Brief The only issue presented for decision on this record is whether, as the complaint alleges, a representative of management in fact refused an employee's request for union representation during a disciplinary interview. See N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). The drivers at this terminal keep a daily log of their delivery runs, showing-to the minute-time spent moving from one delivery point to the next and time doing whatever they are supposed to do while the trucks stands still. In each truck there is also a moving disc which, sensitive to vibration, and on its own clock, also records how the driver's time is spent, moving or still, almost to the minute. Sam Peters, the supervisor over the drivers, called John Kloiber, a driver, into his office about 7:30 am. on March 28, 1979, because the man's two records for the workday March 26-log and disc-read together indicated the driver had perhaps spent 30 minutes, in- stead of the permissible 15, for a coffee break with the truck standing idle. The supervisor wanted to investigate this matter because, if a violation of the rules had in fact occurred, disciplinary action had to be taken. The case turns purely on a question of credibility. Kloiber testified that as soon as he realized what the su- pervisor was doing he asked for "union representation," but that Peters blocked the door so he could not get out-an effective way of denying his request-and con- tinued with his questioning and accusation. In contrast, Peters says he started the whole conversation by himself suggesting Kloiber would "need a union steward," and that when, after very little was said, the talking became heated, the driver just said he needed a "steward and walked out." Who is to be believed? This question of credibility between the two principal witnesses overlaps into the next day, March 29. Peters testified that at the request of the union steward, George Stephan, he met with Kloiber and Stephan on March 29 and discussed the matter with them both, where, after much heated discussion, he told them he would issue a suspension or a warning letter. I suppose the purpose of this testimony offered by the Respondent was to support a contention that the disciplinary interview occurred on March 29, in the presence of the union steward, as Kloiber had demanded the day before. I say I suppose, because the Respondent did not file a brief after the close of the hearing and its defense assertions are no- where articulated. If in fact on March 28 the supervisor discontinued whatever talking was going on as soon as the employee requested union representation, Board law holds there was no unfair labor practice committed. Roadway Express, 246 NLRB No. 180 (1979). In any event, Kloiber denied having met with the su- pervisor at all on March 29; his testimony is that the only meeting between him and management on this matter, after his disciplinary interview of March 28 took place on April 17, when he and steward Stephan met with Peters and General Manager Ronald McMasters. B. The testimony; Credibility Resolution Considering all of the testimony, I credit Kloiber against Peters. Before reaching the subject of what happened during the talk between the two men on March 28 it is impor- tant to state the fact that Peters' purpose, when calling Kloiber to his office, was to question him so as to verify that his suspension for wrongdoing was correct. Indeed, his own version of the event is literal admission this was going to be a disciplinary interview, for according to him the first thing he told the driver was that he "needed" a union steward. If in fact Peters then prevent- ed Kloiber from cutting off the interview without a union agent present, the unfair labor practice is clear. ROADWAAY EXPRESS, INC. 977 Kloiber testified that, when Peters asked him into the office, he, Kloiber, asked would he need a steward and Peters said no; with this Peters closed the door and when both men were seated showed the driver the log and disc dated March 26 and asked was this his disc. As it had no name on it, or other identifying marking, the driver said he did not know. Peters insisted it was; Kloiber disputed the assertion and the two started to raise their voices. Now sensing what this was really about, Kloiber said he wanted a steward present and, rising, started towards the door. Peters then "stood up and blocked the door," in Kloiber's words, while telling the man he was not telling the truth but was "lying." With Kloiber unable to get out of the door, Peters told him to "sit down," and he did. The conversation contin- ued. When Peters had indicated how comparison of the two documents showed Kloiber's truck had stood idle 30 minutes instead of the permissible 15, Kloiber explained what he remembered. He detailed the three reasons why the extra 15 minutes might appear; he had had to com- plete his paper records of the immediate delivery, he had had to telephone the dispatcher for further instructions, and he had had to fix his glasses. Peters would have none of that, and again accused Kloiber of stealing time. He closed the interview by telling Kloiber he would re- ceive a warning letter. When Kloiber retorted he would "fight it," the supervisor told him to do as he wished. Kloiber said the interview lasted about 20 minutes. We now come to Peters' testimony. He saw the "dis- crepancies" in the documents and therefore had Kloiber sent to his office. The following are the witness' exact words when first stating what happened: I said good morning to him. I said, "John, I think you are going to need a Union steward," and John said, "What is that about?" I said, "John, I think you need Union representation." He kept badgering me, "What is it about?" and he got kind of huffy about it and I finally shut the door and told him what it was all about, trying to calm him down and so forth. I told him that I did want to see him with the Steward, to come in with the Steward and that was the end of it, until the next day .... Asked how long had this taken, Peters then said: "I'd say about 15 minutes, 20 minutes roughly." Asked again was that all that had been said during a 20 minute period, the witness then told a different story: I asked him about a couple of discrepancies on the card and then I related back to his extended coffee break and it got into a discussion, because at first I wasn't going to tell him until his brought his steward in. Then, he kept going back and forth, so finally I told him. If one looks at no more than these first two beginning statements by the witness, it is clear he was changing his story, and therefore not telling the truth. He first would have it that he did no more than tell Kloiber "what it was all about," just to calm him, and that that was "the end." His second statement admits he spent about 20 minutes asking questions concerning the discrepancies, relating back to the coffee break, getting into a discus- sion, and "going back and forth." This is precisely what Kloiber said happened after he tried to get out the door but was prevented from leaving. Peters even added that part of the time during that talk was spent "Asking him for his explanation of the extended coffee break and the discrepancies in time." Asked, later in his testimony, about Kloiber's request for union representation, the wit- ness equivocated: Q. [Counsel for the Respondent] Did you get from Mr. Kloiber a request or a question as to whether or not he needed Union representation? A. Yes, I believe I told him he needed .... Q. Listen to the question. Did he ask you wheth- er or not he needed Union representation? A. I don't recall, because I already told him at the time that he needed Union representation. Q. What did he say about getting a Union Ste- ward? A. At that time he stood at the door, like I told you, and he kept badgering me what it was about. He wanted to know what it was about, why he needed Union representation. Aside from the fact he changed his testimony as he went along-first saying there was no disciplinary inter- view and then literally admitting it-a good part of Peters' testimony is consistent with Kloiber's version of the conversation. But there is more reason for crediting Kloiber against the supervisor. On April 4, Kloiber was given notice of 3-day suspension, for this matter of the log discrepancy; he was to be off April 11, 12, and 13. Because of a na- tionwide strike that started in the interval, the suspension was changed to April 17, 18, and 19, 3 workdays that he actually lost. Peters said that his decision to impose the suspension resulted from a discussion of the affair which took place on March 29, with both Kloiber and his union steward participating. He added the meeting was held at the request of the steward, after Kloiber had asked his union representative. Kloiber said there never was such a meeting, and Stephan, called as a witness for the Re- spondent, while saying he may have talked with Peters the next day-in fact his log has a notation "meeting with Sam [Peters]"-testified he had no recollection of any meeting in which Kloiber participated. And McMasters, the terminal manager, instead of corroborating Peters, testified there was a meeting on March 29 but that when he looked through the glass door because voices were being raised, saw only Peters and Stephan in there. This is the Respondent's witness, and his testimony binds the Company. Beyond all this, Stephan was the only union steward in this terminal at that time. His schedule was to start work at 2 p.m. on March 28 and he arrived about that time. Peters admitted that "as a rule" he knows the scheduled hours of work of all the drivers. This means that when he called Kloiber to his office at 7:30 a.m. he knew there was no union steward available. If, as he now claims to have told Kloiber right away, he thought the man needed a steward, all he had to do was wait ROAI)WAY EXPRESS, INC. 977 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until Stephan was available. Why did he not plan the in- terview for an hour when Stephan would have been there? I cannot credit Peters in this case. I find on the record in its entirety that the Respondent violated Section 8(a)(1) of the Act by refusing the re- quest of a rank-and-file employee for union representa- tion during a disciplinary interview. C. Another Allegation I find no merit in the General Counsel's additional contention that the Respondent also violated Section 8(a)(1) of the Act on June 8, 1979, when Peters again brought Kloiber to the office to ask him to explain why it had taken him "so long to get from this point to that point." When Kloiber said there was construction on the road, Peters said: "That's right-I should have remem- bered." Before entering the office Kloiber asked did he need a steward and Peters said no. To hold, as the Gen- eral Counsel argued at the hearing, that what happened here was tantamount to a management refusal of an em- ployee's request for union representation, would be an unwarranted extension of the Weingarten rule. Moreover, this brief inquiry by the supervisor fell short of constitut- ing a disciplinary interview in any event. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forther in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The Respondent must be ordered to cease and desist from refusing to permit employees being subjected to disciplinary interviews to have their union representative present when they ask for one. It must also be ordered to remove from the personnel file of John Kloiber the sus- pension notice issued to him, and to reimburse him for the 3-day loss of work pay. CONCLUSIONS OF LAW 1. By requiring an employee to participate in a disci- plinary interview without union representation, where such union representation was requested by the employ- ee, and where the employee has reasonable grounds to believe that the matters to be discussed may result in his being the subject of disciplinary action, the Respondent has violated Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' The Respondent, Roadway Express, Inc., Tonawanda, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Requiring employees to participate in disciplinary interviews without union representation, when requested by employees, when employees have reasonable grounds to believe that the matters to be discussed may result in their being the subject of disciplinary action. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Strike and physically expunge from its records the suspension notice given to John Kloiber on April 4, 1979. (b) Make whole John Kloiber for loss of wages during the 3-day suspension imposed upon him in April 1979. (c) Post at its Tonawanda, New York, terminal copies of the attached notice marked "Appendix. " 2 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by the Respond- ent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2 In the event that this Order is enforced by a Judgment of a United Slates Court of Appeals, the words in the Notice reading "Posted by Order of The National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."