Container Corp. Of America

National Labor Relations Board - Board Decisions

Dec 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