Cooper-Jarrett, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1123 (N.L.R.B. 1982)

COOPER-JARRETT, INC.
Cooper-Jarrett, Inc. and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 261.
Cases 6-CA-13569 and 6-CA-14024
March 22, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On September 29, 1981, Administrative Law
Judge J. Lee Benice issued the attached Decision
in this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs, and Respondent filed a brief in response to
the General Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of
the Act by threatening to retaliate against an em-
ployee for filing a grievance. The complaint also
alleged, however, that Respondent violated Section
8(a)(1) of the Act by Respondent's chairman of the
board, Bush Abadere, threatening union steward
Donald McDonald with discharge because of his
support for the Union and because he held a union
office; disparaging and verbally abusing McDonald
because he processed employee grievances; and so-
liciting other employees to remove McDonald
from union office. The Administrative Law Judge
dismissed these allegations, reasoning that Mc-
Donald was not threatened with discharge since
Abadere was venting his frustration over his "in-
ability" to fire McDonald; that, while Abadere's re-
marks were abusive and disparaging, they were not
made because of McDonald's union activity; and
that Abadere's comments to other employees were
so utterly lacking in reasoning and made while "so
obviously out of control" that it is doubtful that
any employee took him seriously and that there is
no evidence that any employee did. The Adminis-
trative Law Judge concluded that Abadere's re-
'Respondent has excepted to certain credibility findings made by Ihe
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative 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 (1950), enfd. 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
260 NLRB No. 159
marks did not violate Section 8(a)(1) of the Act
since they did "not realistically impinge upon any
employee's exercise of his or her Section 7 rights."
The General Counsel excepts to the above findings,
and we find merit in certain of the exceptions.
Abadere had devised a plan under which em-
ployees voluntarily contributed 7 percent of their
gross pay as a loan to the Company to assist it
through serious financial difficulties. Although
Abadere had apparently tried to persuade Mc-
Donald to contribute, McDonald along with some
other employees did not participate in the plan.
McDonald's decision not to contribute was well
known among other employees as McDonald was
an extremely influential steward.
On the morning of June 12, 1980, Abadere told
McDonald that "I wish you didn't work for this
company," that McDonald was "bad for the
morale of the men," and was a "son of a bitch."
McDonald asked, "Why don't you fire me?" Aba-
dere said that he wished he could, and that Mc-
Donald was "a fucking prick." Shortly thereafter,
Abadere approached employee James DeJulia. He
said that McDonald was a "son of a bitch" and
that the men should get a new leader. He then ap-
proached employee Jack Trout and said that Mc-
Donald was no good and that they needed a new
leader. Finally, later that day in a conversation
with employee William Smith, Abadere said to
Smith: "Get rid of that fucking McDonald. He's no
good for the Company. He's breaking me. Vote
him out." Smith asked what was wrong with Mc-
Donald. Abadere responded, "He's a no good bas-
tard."
We have long held that Section 8(a)(1) of the
Act is violated when an employer engages in con-
duct which may reasonably be said tends to inter-
fere with the exercise of employee rights under the
Act. 2 The employer's motive for the proscribed
conduct and employees' subjective reactions to it
are irrelevant.
We find, contrary to the Administrative Law
Judge, that Abadere's remarks to employees DeJu-
lia, Trout, and Smith that McDonald was a "son of
a bitch," that they should replace him as their
union steward, that he was no good for the Com-
pany, that he was "breaking" Abadere, and that
the employees should vote him out of union office
constituted interference with employee rights under
the Act and, therefore, were violative of Section
8(a)(l) as alleged.3 Indeed, Abadere could hardly
2 Seneca lx-ds Corporation. 244 NL.RB 558, 563 (1979); El Rancho
Market, 235 Nl RB 46h (1978); fanes tlosiery. In. I 219 NLRB 338
(1975)
3GeneralStencils. Inc. 195 NL.RB 1109 (1972)
1123
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been more explicit in calling upon employees
to oust McDonald as their union steward, a request
which plainly interferes with rights protected by
the Act. 4
Abadere's remarks to McDonald are also viola-
tive of Section 8(a)(l) of the Act. McDonald's
union activity was never explicitly mentioned by
Abadere in his conversation with McDonald. Con-
sidering this conversation alone without more evi-
dence, it is difficult to discern why Abadere lashed
out againt McDonald in the manner that he did. It
is conceivable that the sole basis of Abadere's out-
burst was his frustration with his difficulty in win-
ning over employees to join his 7-percent reinvest-
ment program. However, the meaning of Abadere's
remarks becomes clearer given his subsequent con-
versations with other employees in which he prod-
ded and virtually ordered unit employees to
remove McDonald from union office. Thus, it be-
comes clear that, in his remarks to McDonald,
Abadere singled out McDonald for criticism be-
cause of his position as an influential union steward
who did not support Respondent's reinvestment
program. Abadere's failure to refer specifically to
McDonald's union activity does not preclude us
from finding a violation here as such a finding
"would merely reward a wrongdoer for his cir-
cumspection." 5 Moreover, while Abadere never ex-
plicitly threatened to discharge McDonald during
the conversation, he did say that he wished Mc-
Donald did not work for Respondent and that he
wished he could fire McDonald. Such remarks in
light of Abadere's later statements to employees,
which we infer were later related to McDonald,
tend to interfere with McDonald's Section 7 right
to hold union office. 6 We find that such veiled
threats constituted an implied threat of discharge
violative of Section 8(a)(1) of the Act.7
We do not find, however, that Abadere's com-
ments to McDonald disparaged and verbally
abused McDonald because he presented grievances
pursuant to the collective-bargaining agreement.
We agree with the Administrative Law Judge that
there is no evidence to link Abadere's comments
with McDonald's grievance-processing function.
Accordingly, we agree with the Administrative
Law Judge and shall dismiss this complaint allega-
tion. 8
I Martin K. Eby Construction Co. Inc., 250 NLRB 1348 (I98);, cl'
Kansas City Power & Light Company, 231 NI RB 204 (1977)
' El Rancho Market, 235 NLRB 471, fn. 11 (1978).
sGeneralStencils. Inc., 195 NLRB 110(9 (1972)
* Wometrco Coca-Cola Bottling Company of Nashville, Inc., 255 NLRB
431, 443, (1981), Rolligon Corporation, 254 NLRB 2 (1981); Bell Burglar
Alarms. Inc., 245 NLRB 990 (1979).
'Cf. Graves Trucking. Inc., 246 NL.RB 344 (1979).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Cooper-Jarrett, Inc., West Middlesex, Pennsylva-
nia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge be-
cause of their union support and because they hold
union office.
(b) Soliciting employees to remove a union ste-
ward from office.
(c) Making threats of retaliation against employ-
ees who file grievances against Respondent pursu-
ant to a collective-bargaining agreement.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its West Middlesex, Pennsylvania, ter-
minal copies of the attached notice marked "Ap-
pendix."9 Copies of said notice, on forms provided
by the Regional Director for Region 6, after being
duly signed by Respondent's representatives, shall
be posted by it 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 Re-
spondent to insure that copies of said notices are
not altered, defaced, or covered by any other mate-
rial.
(b) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that any other allega-
tion of the complaint which charges Respondent
with an unfair labor practice other than those
found herein be, and the same hereby is, dismissed.
I In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
order of the National Labor Relations Board "
1124
COOPER-JARRETT, INC
APPENDIX
NOTICE TO EMPILOYFES
POSTED BY ORDER 01 THE
NATIONAL LABOR RELATIONS BOARD)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL. NOT threaten our employees with
discharge because of their union support and
because they hold union office.
WE WILL NOT solicit employees to remove a
union steward from office.
WE WILI. NOT threaten retaliation against
employees who file grievances against us pur-
suant to our collective-bargaining agreement.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act.
COOPER-JARRETT, INC.
DECISION
STATEMENT OF THI- CASE
J. LEE BFNICE, Administrative Law Judge: The
charges in these cases were filed on June 24 (Case 6-
CA-13569) and November 10, 1980 (Case 6-CA-14024),
by the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 261. The complaint in Case 6-CA-13569,
issued August 12, 1980, alleges that Respondent, through
its chairman of the board, Bush Abadere. violated Sec-
tion 8(a)(1) of the Act by (1) threatening an employee
with discharge because of his support for the Union and
because he held a union office; (2) soliciting employees
to remove a union steward from office; and (3) disparag-
ing and verbally abusing an employee because he pro-
cessed employee grievances. The complaint in Case 6-
CA-14024, issued December 10, 1980, alleges that Re-
spondent, through a supervisor, Gene Boso, violated
Section 8(a)(1) by threatening an employee with reprisals
if he presented and processed a grievance. Respondent
denies the commission of any unfair labor practices.
A hearing was held before me at West Middlesex,
Pennsylvania, on March 5, 1981. Post-hearing briefs have
been filed by the General Counsel and the Respondent.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor, I make
the following:
FINI)INGS ANI) CONCI USIONS
I. THE BUSINESS Of RISPONDI NT
Respondent is engaged in the transportation of freight
in interstate commerce. During a representative l-year
period it derived gross revenues of more than $50,000
from such operations. I find that Respondent is an em-
ployer engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. IHE- lABOR ORC.ANIZATION INVOI VED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 261, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
1l. iHEt AI.I EGE) VIOL ATIONS IN CASE 6-CA-13569
A. The Facts
Respondent had been having serious financial difficul-
ties, and in order to assist it through this difficult period,
its chairman of the board, Bush Abadere, devised a plan
modeled after one used by Eastern Airlines, under which
employees who voluntarily joined the plan contributed a
percentage of their gross pay as a loan to the Company
in the hope that this would help the Company through
its difficulties and would eventually even return a profit
to the employee on his investment. Some chose to join
the plan, and some did not. Conspicuous among those
who did not was Donald McDonald, union steward for
the 75-person dock workers' unit at the West Middlesex,
Pennsylvania, terminal. McDonald had earlier been in-
troduced to Abadere (by the terminal manager at the
time) as the most influential steward he had ever met,
and his decision not to contribute was well known to the
other employees, for whatever effect his example might
have had. Abadere believed that McDonald was very in-
fluential with the other men, and that many of the others
would have joined in if McDonald had. But he had been
unable to persuade McDonald. Respondent claims, but
offered no evidence to prove, that Abadere had been
under a great deal of pressure trying to turn around this
failing Company.
Abadere was notorious for his use of very coarse lan-
guage. He used it for emphasis whether he was angry,
joking, or merely making a point.
On the morning of June 12, 1980, at Respondent's
West Middlesex, Pennsylvania, terminal, Abadere was
standing behind McDonald as the latter was backing a
highlift out of a trailer. McDonald said, "Good morn-
ing," to which Abadere responded, "I wish you didn't
1125
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work for this company." McDonald answered, "Is that
right?" And Abadere added, "You're bad for the morale
of the men. You are a son of a bitch." McDonald then
taunted, "Why don't you fire me?" to which Abadere re-
sponded, "I wish I could. You're a fucking prick." Mc-
Donald then said, "You can do anything you want to
do" and drove off.
Abadere then approached another dockman, James
DeJulia, declared that McDonald was a "son of a bitch,"
and added that the men should get a new leader. Later
he approached dockman Jack Trout and said that Mc-
Donald was no good and that they needed a new leader.
Much later in the day, dockman William Smith ap-
proached Abadere to ask him how the Company was
doing. Smith was concerned because he was contributing
7 percent of his salary to the Company, under the afore-
mentioned plan, and was unsure of his investment. In the
course of their conversation about the plan, Abadere
abruptly said "Get rid of that fucking McDonald. He's
no good for the Company. He's breaking me. Vote him
out." Smith asked him what his trouble was with Mc-
Donald, and Abadere replied, "He's a no good bastard."
Then they were interrupted, and the conversation was
never resumed.
There is no evidence that Abadere ever pursued this
campaign against McDonald any further, and, in the
months that followed, he made further efforts to per-
suade McDonald to support the plan. These efforts were
unsuccessful.
B. Concluding Findings
The General Counsel takes the position that the abu-
sive language and the attempts to unseat McDonald as
union steward were directed at him because of his effec-
tiveness in processing employee grievances, a skill which
allegedly was becoming costly to the Company; and that
Abadere threatened McDonald with the loss of his job as
dockman. These acts, according to the General Counsel,
constituted violations of Section 8(a)(l) of the Act. How-
ever, it was apparent at all times that McDonald's con-
tinued employment was not in any way jeopardized by
Abadere's remarks, which were not threats but merely
reflected Abadere's frustration.' And there is no evi-
dence whatsoever to show how effectively handled or
how costly to the Company the grievances were which
McDonald handled. On the other hand, it is easy to un-
derstand Abadere's resentment and frustration over
McDonald's unwillingness to lead other employees to
support the financial plan which Abadere felt was impor-
tant in the struggle to turn the company around finan-
cially.
The General Counsel contends that Abadere's remarks
were abusive and disparaging and that this abuse was di-
rected against the employee because of his protected ac-
tivity as a union steward. I find, however, that although
Abadere's remarks were unquestionably abusive and dis-
paraging, the connection with union activity is nowhere
'The General Counsel argues that some of Abadere's remarks to Mc-
Donald amounted to an invitation to quit, carrying with it an implied
threat of discharge. I find such a conclusion to be unsupportable. The re-
marks were an obvious expression of regret over Abadere's inability to
get rid of McDonald.
established and cannot fairly be inferred from Abadere's
words or from the circumstances.
The General Counsel contends that Abadere violated
Section 8(a)(l) by unlawfully soliciting employees to
remove McDonald as steward. However, I find it almost
impossible to take Abadere's efforts seriously. His short-
lived buttonholing campaign was begun and ended 9
months before the next election. The campaign itself
consisted entirely of outbursts in front of three dockmen,
all on the same day. In trying to persuade the first em-
ployee, James DeJulia, to get rid of (what Abadere, at
least perceived as) a popular and influential leader, his
only argument was that McDonald was a "son of a
bitch." To convince Jack Trout, Abadere's entire case
consisted of saying that McDonald was "no good." In
answer to Smith's inquiry as to specifically what the
trouble was with McDonald, Abadere's analysis was that
"He is a no-good bastard." Such reasoning presented
under such circumstances could never convince any em-
ployee to vote a popular and effective leader out of
office.
Abadere was so obviously out of control and ineffec-
tive that it is very doubtful that anyone could have taken
him seriously. There certainly is no evidence that anyone
did. His uncontrolled anger was probably rooted in frus-
tration which grew from McDonald's refusal to help the
Company in its financial hour of need. And, presumably,
Abadere dropped the entire campaign when he regained
his composure. In any event, it all ended on the day it
began.
Far from intimidating anyone, Abadere seems only to
have succeeded in making a fool of himself with his ab-
surdly ineffective rantings. Such activity is not prohibit-
ed by Section 8(a)(l) since it does not realistically im-
pinge upon any employee's exercise of his or her Section
7 rights.
IV. THE Al I.EGED VIOLATIONS IN CASE 6-CA-14024
A. The Facts
On October 7, 1980, McDonald was asked by Paul
Hortert, one of the dockmen, to file a grievance because
a junior man had been called in to work in place of Hor-
tert on September 27. McDonald filed the grievance and
afterward spoke to Gene Boso, the terminal manager at
West Middlesex, who admitted that the "call-around"
had been his mistake but who said, in effect, that he did
not want to have to pay for it and would try to talk
Hortert out of it, that Hortert was nitpicking. Boso
stated that Hortert had been late for work several times
and had not been nailed for everything, but that if Hor-
tert was going to insist upon payment, Boso was going
to start to nail Hortert for everything. Boso denies
making the threatening statement, but I credit Mc-
Donald. 2
2 McDonald's version has a ring of truth to it, and McDonald had little
incentive for fabricating these remarks, while Boso stands accused, in
effect, and has been trying to escape his share of responsibility for the
"call-around" incident from the beginning I do not agree with Respond-
ent that McDonald's characterization of G C. Exh. 3 as mostly having to
do with offensive language, rather than insubordination, is even inaccu-
Continued
1126
COOPER-JARRETT, INC
Boso then tried to get Hortert to drop the grievance,
and Hortert seemed nearly persuaded, but said he
wanted to talk to McDonald about it before doing any-
thing. Boso got the impression that the grievance would
be dropped, but Hortert apparently never talked to Mc-
Donald nor did anything else about the grievance. So,
when the matter came up for resolution at a hearing at
the local level, Hortert had to be paid for 8 hours of lost
time. Afterward, Boso never retaliated as he had threat-
ened to do.
B. Concluding Findings
It is clear that Boso's threat to "nail" Hortert for
"every little thing" in retaliation for Hortert's pursuing
of a legitimate and serious grievance was an interference
with the free exercise of the employee's rights to file a
grievance, and that Boso's action thus violated Section
8(a)(l). The fact that the threat was delivered only
through the union steward and not directly to the em-
ployee filing the grievance does not excuse it or relieve
it of its tendency to inhibit the legitimate pursuit of this
matter by Hortert or its tendency to inhibit the filing of
other grievances in the future by Hortert or other em-
ployees, since it was likely that word of the threat would
rate, let alone that it discredits his recollection of the events in question
here That document (a discilinary letter addressed to him) appears to
have been drafted almost without regard to what Respondent now al-
leges was its main purpose; i e, to warn against further acts .of insubordi-
nation
be passed on to Hortert and the other employees sooner
or later.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union
No. 261, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening retaliation against an employee who
was processing a grievance against it pursuant to a col-
lective-bargaining agreement, Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and 2(6) and (7) of the Act.
4. Respondent has not been shown to have violated
the Act in the remarks by its chairman to union steward
Donald McDonald or in the chairman's remarks to other
employees concerning McDonald.
[Recommended Order omitted from publication.]
1127