Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Mar 1, 1982

260 N.L.R.B. 570 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roadway Express, Inc. and Lehigh Valley Chapter
Teamsters for a Democratic Union. Case 4-
CA- 11594
March 1, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 4, 1981, Administrative Law
Judge George F. McInerny issued the attached De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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 and
hereby orders that the Respondent, Roadway Ex-
press, Inc., Allentown, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
' Contrary to the statement of the Administrative L aw Judge in In 2
of his Decision, we agree with Respondent that the record established
that Respondent had instituted the use of production cards at its Allen-
town facility prior to the events in the instant case However, this missta-
tement by the Administrative Law Judge in no way affects his finding,
with which we agree, that employee Madouse, in posting and distributing
materials protesting Respondent's use of production cards at its Tanners-
ville facility, was engaged in protected concerted activity Employees
have no less interest in or concern about a work rule that has been im-
posed than one that is being considered. In the former case, employees
may legitimately protest the use and application of the rule and seek its
rescission, and here Madouse's actions were clearly designed to make his
fellow Allentown employees aware that such a legitimate protest might
be appropriate.
We do not adopt, however, the Administrative Law Judge's specula-
tive and irrelevant comments regarding the effects of the activities of the
Teamsters for a Democratic Union on the stability of the bargaining rela-
tionship between Respondent and the Teamsters Union
2 The Administrative Law Judge inadvertently failed to conform the
notice to the Order. Accordingly, we have substituted the attached
notice for that of the Administrative l.aw Judge
260 NLRB No. 78
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS 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.
WE WILL. NOT interfere with our employees'
exercise of protected concerted activities by
removing literature posted on bulletin boards
or placed on tables in our dispatch room in Al-
lentown, Pennsylvania.
WE WIL.L NOT impose a no-solicitation/no-
distribution rule which discourages employees
from engaging in protected concerted activi-
ties.
WE WI.I. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
by Section 7 of the Act.
WtE Wl.l_ rescind the no-solicitation/no-dis-
tribution rule imposed on September 16, 1980.
ROADWAY EXPRESS, INC.
DECISION
S'rAIIM1-Nr OF ITHE CASE
GF.ORGI F. MCINERN\, Administrative Law Judge:
Based on a charge filed on November 13, 1980, by
Lehigh Valley Chapter Teamsters for a Democratic
Union, the Acting Regional Director for Region 4 of the
National Labor Relations Board, herein referred to as
the Board, issued a complaint on December 30, 1980, al-
leging that Roadway Express, Inc., herein referred to as
the Company or Respondent, had violated Section
8(a)(l) of the National Labor Relations Act, as amended,
29 U.S.C. §151, et seq., herein referred to as the Act, by
removing material posted by one of its employees on a
bulletin board, and by promulgating an invalid no-solici-
tation rule. Respondent filed an answer to the complaint
denying the commission of any unfair labor practices.
Pursuant to notice contained in said complaint a hear-
ing was held before me in Allentown, Pennsylvania, on
August 26, 1981, at which all parties were represented,
and were given the opportunity to present testimony and
documentary evidence, to examine and cross-examine
witnesses, and to argue orally.' After the conclusion of
the hearing, the General Counsel and Respondent filed
briefs which have been carefully considered.
' The General Counsel has moved to amend the transcript of this hear-
ing in certain respects In the ahbence of objection, the motion is allowed.
570
ROADWAY EXPRESS, INC.
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
1. JURISDICTION
Roadway Express, Inc., is a Delaware corporation en-
gaged in the trucking industry as a common carrier haul-
ing freight in interstate commerce. It maintains a termi-
nal in Allentown, Pennsylvania, which is the location in-
volved here. The complaint alleges, the answer admits,
and I find that Roadway Express, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE ALI.EGED UNFAIR I ABOR PRACTICES
At the opening of the hearing all parties stipulated that
a no-solicitation rule promulgated by the Company was
overly broad. The rule, which was posted at the Allen-
town terminal on September 16, 1980, over the signature
of Terminal Manager F. R. Tomb stated that "the distri-
bution and/or posting of non-authorized, non-company
literature or possession of same on company property is
strictly forbidden" and that "[a]ny employee who vio-
lates these instructions will be subject to disciplinary
action up to and including immediate discharge."
The posting of this notice reflected Respondent's con-
cern over a situation in which some of its employees
were interested in an organization known as Lehigh
Valley Chapter Teamsters for a Democratic Union
(TDU), which is the Charging Party herein. Respond-
ent's employees have been represented for some time by
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Teamsters), and
worked under the terms of the National Master Freight
Agreement and the Central Pennsylvania Over-the-Road
and Local Cartage Supplemental Agreement. Under arti-
cle 19, section 2, the Company was required to maintain
a bulletin board at each of its terminals for the use of the
Teamsters.
At Allentown the Company maintained a bulletin
board for the Teamsters, as well as other boards for
company use in a small room where drivers reported
before and after their assignments. The room contained a
windowed partition looking into the office area of the
terminal, where drivers received their orders and report-
ed to the dispatcher. In addition to the dispatch window
and the bulletin boards, the room contained a table
where drivers could sort out paperwork, and an unat-
tended snackbar where employees could buy candy,
cookies, and such. The room was also used without op-
position from management, as a break room or a lunch-
room by employees.
There was some question about the use of the bulletin
boards. It was agreed by those who testified that a social
organization of Respondent's employees called the Rex
Club used the bulletin boards to post its bylaws and to
advertise its social activities. On the question of posting
of other materials the witnesses for the General Counsel
maintained that materials offering articles for sale were
posted without hindrance from management, and a
notice for a church program in which employee Gary
Heintzelman was interested remained posted for some
time. On the other hand, Terminal Manager Ray Tomb
stated that he frequently checked the status of the bulle-
tin boards and removed any notices which did not have
to do with the Teamsters or the Rex Club. I have some
doubt about this, because Tomb admitted his visits to the
room where the bulletin boards were located were infre-
quent, and also because he admitted that materials circu-
lated by TDU in an election campaign the previous year
were allowed to remain posted. I find that, while Tomb
may have made efforts from time to time to reduce clut-
ter on the bulletin boards, there was no firm practice or
policy restricting the use of the boards to the Teamsters
or the Rex Club materials.
In the fall of 1980 the TDU was concerned about a
new practice instituted by Respondent in some of its ter-
minals. This required employees to fill out "production
cards" on work assignments. The cards were then tabu-
lated and used to measure productivity (and, presumably,
to increase productivity by forcing employees to work
harder).2 The TDU was upset and concerned over this
action by the Company, and even more concerned over
what was perceived as lack of effective protest of this
action by the Teamsters,
Douglas Madouse, an employee of the Company, was
also a member of the Lehigh Valley Chapter of TDU.
At a meeting of this organization in September 1980, Ma-
douse picked up a poster containing protests by "North-
western Pennsylvania TDU" against the Company's ac-
tions at its Tannersville facility together with copies of a
TDU newspaper entitled "Convoy Dispatch" which also
contained articles critical of the Company, particularly
the imposition of the production cards. On the morning
of September 15, Madouse posted the poster on a bulle-
tin board occupied by safety posters. He testified that he
did not cover anything else with this item. He placed
copies of the newspaper on the table in the dispatch
room, then went out for a few moments. When he re-
turned he found that someone had taken a page from one
of the newspapers, a page dealing specifically with
Roadway Express and the production cards, and posted
it on the bulletin board reserved for the Teamsters and
the Rex Club notices. Madouse did not disturb this, but
left on his route for the day.
When Madouse returned he noticed that the materials
which had been posted that morning, as well as the
newspapers, were gone. He asked the dispatcher what
had happened and the dispatcher replied that Tomb had
removed them.
On the next day Tomb posted the new rule mentioned
above, and since that time Madouse has neither distribut-
ed nor posted TDU literature.
Since Respondent has admitted that the September 16
notice written and posted by Tomb is unlawfully broad,
and a reading of the notice certainly confirms this, I will
not discuss that aspect of the complaint, but will turn to
the alleged violation of Section 8(a)(l) of the Act based
z There is no indication in the record that the Company Intended im-
plementing this sytem at the Allenlown terminal
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on Tomb's removal of the TDU literature on September
15.
The Company is concerned about the internal conflict
within the Teamsters. This is understandable. The Com-
pany negotiates with the Teamsters for a collective-bar-
gaining agreement which, however costly in terms of
economics and administration, should assure the Compa-
ny a certain stability in labor relations during its term.
The activities of TDU, as shown by its literature intro-
duced in the record of this case, would tend to interfere
with this stable relationship by promoting a greater mili-
tancy on the part of the Teamsters.
The Company argues that since Madouse, a single em-
ployee, posted the offending notices, he was not engaged
in concerted activity. However, Madouse testified that
he was a member of the Lehigh Valley Chapter of TDU,
and that he had obtained the materials he posted at a
TDU meeting. The materials contained matters of inter-
est to Madouse, and his act of posting and leaving the
newspapers clearly shows that he wanted others to be
aware of the content. 3 I find that Madouse, in posting
and distributing these materials, was engaged in concert-
ed activity for the information and edification of his
fellow employees as well as himself.
Respondent also argues that the subject matter of the
literature "bore no demonstrated relevance to the Re-
spondent's Allentown employees." I disagree. The litera-
ture is militant and strident in tone, but it does describe
the implementation of new production standards at Re-
spondent's Tannersville, Pennsylvania, facility. Tanners-
ville is approximately 45-50 miles north of Allentown. I
think any prudent driver at Allentown could deduce
that, if something works out for the Company at Tan-
nersville, it could and would be applied elsewhere, in-
cluding at Allentown. It thus does not appear to me that
the issue is so remote from the legitimate work interests
of the Allentown employees as to stand in the category
of solicitations from a fraternal lodge.
While, as I have noted, the literature is militant in
tone, a careful reading shows that there is no solicitation
contained therein which could be viewed as a call for
violence, illegal actions, or actions in violation of the
contract. Indeed employees are urged to press grievances
under the contract to their ultimate disposition. Then, if
a deadlock occurred at the National level, the Union, as
the contract provides, may take economic action, includ-
ing, presumably, a strike.
In view of this discussion, I find that Madouse was en-
gaged on September 15 in protected concerted activity.
This activity was connected with working conditions at
other Roadway terminals, but could be viewed as likely
to spread to Allentown. The literature posted was not in-
flammatory nor would it tend to lead to unlawful ac-
tions.
In this connection the record is fairly clear that the
Company had, up to September 16, no rule about posting
of materials. I credit the testimony of Madouse, Barry
Smith, and Heintzelman that other materials were posted
on the bulletin boards for varying lengths of time with-
out hindrance.
I The fact that the poster may have come from another subdivision of
TDU does not put that item in a different category.
I therefore find that by removing the literature from
the bulletin boards, and from the dispatch room, Re-
spondent has violated Section 8(a)(l) of the Act.4 Trans-
con Lines, 235 NLRB 1163 (1978); Illinois Bell Telephone
Company, 255 NLRB 380 (1981).
It is clear, also, that the no-distribution no-solicitation
rule promulgated by Respondent is invalid as overly
broad, and is a further violation of Section 8(a)(1) of the
Act. Pedro's Inc., d/b/a Pedro's Restaurant, 246 NLRB
567 (1979).
111. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(l), I
shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
CONCL USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaing of Section 2(6) and (7) of the Act.
2. By removing literature posted on its premises by an
employee engaged in protected concerted activity, Re-
spondent has violated Section 8(a)(l) of the Act.
3. By promulgating a no-distribution no-solicitation
rule which is overly borad, Respondent has violated Sec-
tion 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby recom-
mend the following:
ORDER s
The Respondent, Roadway Express, Inc., Allentown,
Pennsylvania, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Interfering with the protected concerted activities
of its employees by removing literature posted on bulle-
tin boards or placed on tables in its dispatch room in Al-
lentown, Pennsylvania.
(b) Promulgating no-distribution no-solicitation rules in
order to discourage employees from engaging in protect-
ed concerted activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Immediately rescind the no-distribution no-solicita-
tion rule promulgated on September 16, 1980.
4 Respondent's argument that TDU lacks "privily" is really irrelevant
since it is not the rights of TDU which are at issue here, but the rights of
Respondent's employees
5 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.
572
ROADWAY EXPRESS. INC
(b) Post at its place of business in Allentown, Pennsyl-
vania, copies of the attached notice marked "Appen-
dix. " 6 Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly signed
by Respondent's authorized representative, shall be
s In the ev cut this Order i, enforced h' a Judgment of a Unlited States
Court of Appeal'. the words in the noticc reading "P'oled hby Order of
the National L.abor Relatiljon B1oard" Shall read "iosted Pursuant to a
Judgment of the United States (Court of Appeal, IFnfiircing an Order of
the National labohr Relatin,, HBo rd"
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to the employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
573