ABF Freight Systems

National Labor Relations Board - Board Decisions

Mar 31, 1998

325 N.L.R.B. 546 (N.L.R.B. 1998)

546
325 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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. We also find no merit in
the Respondent’s allegations of bias and prejudice on the part of the
judge. Thus, we perceive no evidence that the judge prejudged the
case, made prejudicial rulings, or demonstrated a bias against the
Respondent in his analysis or discussion of the evidence. Similarly,
there is no basis for finding that bias and prejudice exist merely be-
cause the judge resolved important factual conflicts in favor of the
General Counsel’s witnesses. NLRB v. Pittsburgh Steamship Co.,
337 U.S. 656, 659 (1949).
The complaint alleged that the Respondent’s bypassing of the
Union and dealing directly with an employee regarding a grievance
was violative of Sec. 8(a)(5) of the Act, not Sec. 8(a)(1) as stated
by the judge in the first paragraph of his decision. This inadvertent
error does not affect the result.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
3 A unilateral change allegation essentially rests on a theory that
the employer has, in violation of Sec. 8(a)(5) of the Act, failed to
comply with its statutory obligation to bargain with the exclusive
representative of its employees. NLRB v. Katz, 369 U.S. 736 (1962).
Had such a violation been alleged or fully litigated and established
on the record, it would be appropriate to find both a violation of
Sec. 8(a)(5) and a violation of Sec. 8(a)(1)—the latter as a derivative
of the 8(a)(5) violation rather than as an independent violation. The
derivative finding would not, however, affect a respondent’s obliga-
tions under the order. NLRB v. Katz, supra at 742 fn. 9. See also
3 NLRB Ann. Rep. 52 (1939) (derivative violations generally). We
thus do not agree with the judge’s statement that Sec. 8(a)(1) is
‘‘independently’’ violated in such a case.
4 In adopting the judge’s 8(a)(5) findings arising from the Re-
spondent’s refusal to recognize and bargain with the Union as the
collective-bargaining representative of all the unit employees at the
Respondent’s Avenel facility on April 18, 1996, Chairman Gould
does not rely on the judge’s ‘‘alternate analysis.’’
ABF Freight System, Inc. and Local Union 701,
International Brotherhood of Teamsters, AFL–
CIO. Cases 22–CA–21347 and 22–CA–21388
March 31, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
On June 18, 1997, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
and the Respondent filed a brief in reply.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, as modified, and to adopt the recommended
Order as modified and set out in full below.2
1. We do not adopt the judge’s finding that the Re-
spondent’s arrest of Union Business Agent Robert
Dudik and its ejection of him from the Respondent’s
premises was a unilateral change in the scope of the
contractual access provision, in violation of Section
8(a)(1) of the Act. No such unilateral change violation
was alleged in the complaint or litigated at the hearing.
Consequently, we shall modify the judge’s rec-
ommended Order by deleting paragraphs 1(f) and 2(d),
and we shall substitute a new notice accordingly.3
2. In finding that the Respondent violated Section
8(a)(5) by refusing to furnish the Union requested in-
formation, the judge found that the employees’ ad-
dresses and social security numbers were presump-
tively relevant and that therefore the Union was enti-
tled to this information. While we agree with the judge
that the Union was entitled to receive the addresses of
these employees, the Board has held that employee so-
cial security numbers are not presumptively relevant
and that the union must therefore demonstrate the rel-
evance of such information. See APX International,
323 NLRB No. 208, slip op. at 1 fn. 2 (July 10, 1997),
and cases there cited. We find that the Union has not
demonstrated such relevance here. In this regard, the
Union sought the social security numbers merely to
provide ready and accurate identification of the names
entered into the International Union’s computer. Ac-
cordingly, we shall not require the Respondent to give
the Union these employees’ social security numbers
and shall modify the judge’s recommended Order. The
new notice will reflect this modification.
3. We agree with the judge, for the reasons set out
by him, that the Respondent violated Section 8(a)(5)
and (1) of the Act by, inter alia, failing and refusing
since about April 18, 1996, to apply the terms of the
parties’ April 1, 1994, to March 31, 1998 collective-
bargaining agreement to all office clerical employees
following the Respondent’s transfer and relocation/
consolidation of operations from its Linden and East
Brunswick, New Jersey terminals to its Avenel, New
Jersey terminal, effective April 1 and 15, 1996, respec-
tively.4 In regard to this violation, the judge has im-
plicitly recommended a make whole remedy. To clar-
ify this aspect of his decision, we shall amend the
judge’s recommended remedy expressly to require the
Respondent to make-whole any employees who suf-
fered losses as a result of the Respondent’s unlawful
failure to apply the terms of the above-referenced col-
lective-bargaining agreement to the office clerical unit
employees following the Respondent’s transfer and re-
location of operations from its Linden and East Bruns-
wick, New Jersey terminals to its Avenel, New Jersey
terminal in April 1996. Specifically, and in addition to
the remedial steps recommended by the judge, which
we adopt except as noted elsewhere in this decision,
we shall also expressly order that the Respondent make
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547ABF FREIGHT SYSTEM
whole the office clerical unit employees for any loss
of earnings and other benefits suffered as a result of
the Respondent’s unlawful failure to apply the terms of
the parties’ April 1, 1994, to March 31, 1998 collec-
tive-bargaining agreement to them. We agree, however,
with the judge’s recommendation, as set out in para-
graph 2(c) of his recommended Order, that to the ex-
tent that the Respondent’s unlawful failure to apply the
terms of the collective-bargaining agreement may have
led to improved terms and conditions of employment
for unit employees, the Order shall not be construed as
requiring or permitting the Respondent to rescind any
such improvements unless requested to do so by the
Union.
AMENDED REMEDY
The Respondent shall be ordered to make whole the
office clerical unit employees for any loss of earnings
and other benefits suffered as a result of its unlawful
failure to apply the terms of the parties’ April 1, 1994,
to March 31, 1998 collective-bargaining agreement to
them. Any amounts of money necessary to make em-
ployees whole under the terms of this remedy shall be
computed in accordance with Ogle Protection Service,
183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest thereon computed in accordance
with New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, ABF
Freight System, Inc., Avenel, New Jersey, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Making statements to employees indicating that
it would be futile to support the Union.
(b) Attempting to cause and causing the arrest of the
Union’s agent, Robert Dudik, and attempting to eject
him from its facilities.
(c) Threatening employees with reprisals if they do
not withdraw grievances.
(d) Prosecuting any state criminal complaints for
trespass or related offenses against union agents en-
gaged in the performance of union duties under its col-
lective-bargaining agreement with the Union.
(e) Refusing to bargain collectively with Local
Union 701, International Brotherhood of Teamsters,
AFL–CIO, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment, as the exclusive representative of its em-
ployees in the appropriate unit described below, by
withdrawing recognition from the Union, by refusing
to continue in effect all of the terms and conditions of
its collective-bargaining agreement with the Union, ef-
fective from April 1, 1994, to March 31, 1998, which
was in effect at the time of the relocation/consolidation
of the Linden and East Brunswick facilities with the
Avenel facility, by failing to apply said terms and con-
ditions to all employees in the said unit, and by refus-
ing to furnish relevant and reasonably necessary infor-
mation for the Union’s proper execution of its bargain-
ing obligations as the exclusive representative of its
employees in the following appropriate unit:
All office clerical employees and building prop-
erty maintenance employees employed by the Em-
ployer at its Avenel, New Jersey facility, but ex-
cluding the following: Office Managers, Assistant
Office Managers, Personnel and Payroll Man-
agers, Traffic Supervisors, Terminal Service Man-
ager, Dispatchers, Confidential Secretaries to the
Terminal Manager and Safety Supervisor, General
Supervisory Trainees and other salaried super-
visory administrative and professional employees
within the meaning of the Act and employees
covered by existing labor agreements.
(f) Dealing directly with employees in the adjust-
ment of grievances.
(g) In any like or related manner interfering with,
restraining, or coercing its 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) Furnish the Union with the names and addresses
of all unit employees.
(b) Withdraw, with prejudice, the pending complaint
in the Municipal Court of the Township of
Woodbridge (Docket No. S–1996–000572–1225).
(c) Recognize Local Union 701, International Broth-
erhood of Teamsters, AFL–CIO as the exclusive col-
lective-bargaining representative of the employees in
the unit described above, and continue in effect all the
terms and conditions of the agreement described
above, by applying them to all employees in the appro-
priate bargaining unit described above, and, on request,
bargain collectively with Local Union 701 as the ex-
clusive collective-bargaining representative of the em-
ployees in the appropriate unit pursuant to the collec-
tive-bargaining agreement set out above. Nothing in
this Order is to be construed as requiring or permitting
the Respondent to rescind any improvements in terms
and conditions of employment resulting from the Re-
spondent’s refusal to apply the contract terms to all of
the unit employees at the Avenel facility, unless re-
quested by the Union to make such recissions.
(d) Make the office clerical unit employees whole,
in the manner described in the amended remedy sec-
tion of this decision, for any loss of earnings and other
benefits suffered as a result of the Respondent’s un-
lawful failure to apply the terms of the parties’ April
1, 1994, to March 31, 1998 collective-bargaining
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548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
agreement to them following the Respondent’s transfer
and relocation/consolidation of operations from its Lin-
den and East Brunswick, New Jersey terminals to its
Avenel, New Jersey terminal.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its Avenel, New Jersey facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 18, 1996.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT make statements to employees indi-
cating that it would be futile to support Local Union
701, International Brotherhood of Teamsters, AFL–
CIO.
WE WILL NOT attempt to cause and cause the arrest
of Local Union 701’s agent, Robert Dudik, and WE
WILL NOT attempt to eject him from our facilities.
WE WILL NOT threaten employees with reprisals if
they do not withdraw grievances.
WE WILL NOT prosecute any state criminal com-
plaints for trespass or related offenses against Local
Union 701’s agents engaged in the performance of
union duties under our collective-bargaining agreement
with the Union.
WE WILL NOT refuse to bargain collectively with
Local Union 701 International Brotherhood of Team-
sters, AFL–CIO, with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment, as the exclusive collective-bargaining
representative of our employees in the appropriate unit
described below, by withdrawing recognition from
Local Union 701, by refusing to continue in effect all
of the terms and conditions of our collective-bargain-
ing agreement with Local Union 701, effective from
April 1, 1994, to March 31, 1998, which was in effect
at the time of the relocation/consolidation of our Lin-
den and East Brunswick facilities with our Avenel fa-
cility, by failing to apply said terms and conditions to
all employees in the said unit, and by refusing to fur-
nish relevant and reasonably necessary information for
Local Union 701’s proper execution of its bargaining
obligations as the exclusive collective-bargaining rep-
resentative of our employees in the following appro-
priate unit:
All office clerical employees and building prop-
erty maintenance employees employed by the Em-
ployer at its Avenel, New Jersey facility, but ex-
cluding the following: Office Managers, Assistant
Office Managers, Personnel and Payroll Man-
agers, Traffic Supervisors, Terminal Service Man-
ager, Dispatchers, Confidential Secretaries to the
Terminal Manager and Safety Supervisor, General
Supervisory Trainees and other salaried super-
visory administrative and professional employees
within the meaning of the Act and employees
covered by existing labor agreements.
WE WILL NOT deal directly with employees in the
adjustment of grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you employees in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish Local Union 701 with the names
and addresses of all unit employees.
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549ABF FREIGHT SYSTEM
1 In fn. 1 of his brief, for the first time, counsel for Respondent,
claims he was denied an opportunity to present evidence in his case.
The record, including the transcript references to which counsel re-
fers, establish that after I denied his oral motion to recuse me, coun-
sel refused to produce any witnesses or continue with his defense,
instead insisting upon being provided time to seek special permission
to appeal my ruling to the Board (Tr. 807, LL. 19–21). When I in-
formed counsel I would not delay closing the hearing for that pur-
pose, counsel failed to produce any witnesses. I then shortly after-
ward closed the hearing, but I specifically refrained from denying
counsel leave to seek special permission to appeal, denying union
counsel’s request that I do so. (Tr. 814, LL. 18–22.) Counsel cites
Sec. 102.26 of the Board’s Rules and Regulations to support its ar-
gument that it should have been provided time to appeal before the
record closed. That section merely sets forth the form and procedural
steps a party must follow in seeking to make such an appeal. Noth-
ing in the section precludes the Board from granting such a request
after closing of the record and while the proceeding is still pending
before the judge. No request for special permission to appeal my rul-
ing has been made by Respondent.
2 The agreement on its face is described as ‘‘Office Clerical Em-
ployee’s Agreement.’’ None of the employees involved in this pro-
ceeding are maintenance employees. Thus, for all practical purposes
the unit in dispute is one employing office clerical employees, al-
though the unit description includes maintenance employees.
WE WILL withdraw, with prejudice, the pending
complaint in the Municipal Court of the Township of
Woodbridge (Docket No. S–1996–000572–1225).
WE WILL recognize Local Union 701, International
Brotherhood of Teamsters, AFL–CIO as the exclusive
collective-bargaining representative of the employees
in the appropriate bargaining unit described above, and
WE WILL continue in effect all the terms and conditions
of the agreement described above, by applying them to
all our employees in the appropriate bargaining unit
described above, and WE WILL, on request, bargain col-
lectively with Local Union 701 as the exclusive collec-
tive-bargaining representative of our employees in the
appropriate bargaining unit described above pursuant
to the above-described agreement. Nothing herein is to
be construed as requiring or permitting us to rescind
any improvements in terms and conditions of employ-
ment resulting from our refusal to apply the contract
terms to all of the unit employees at the Avenel facil-
ity.
WE WILL make whole the unit employees for any
loss of earnings and other benefits suffered by them as
a result of our failure to apply to them the terms of
our April 1, 1994, to March 31, 1998 collective-bar-
gaining agreement with Local Union 701.
ABF FREIGHT SYSTEMS, INC.
Julie L. Kaufman, Esq., for the General Counsel.
Ronald H. DeMaria, Esq. (DeMaria, Ellis, Hunt & Fried-
man), of Newark, New Jersey, for the Respondent.
Edward A. Cohen, Esq. and Bruce D. Leder, Esq. (Schneider,
Goldberger, Cohen, Finn, Solomon, Leder & Montalbano,
P.C.), of Kenilworth, New Jersey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried before me on September 24–27, 1996, in Newark,
New Jersey. The consolidated complaint alleges that ABF
Freight System, Inc. (ABF or Respondent), withdrew rec-
ognition from Local Union 701, International Brotherhood of
Teamsters, AFL–CIO (the Union or Local 701) as collective-
bargaining representative of, and refused to apply the union
contract to, all unit employees following its transfer and relo-
cation of operations from its Linden and East Brunswick,
New Jersey terminals to its Avenel, New Jersey terminal, and
has failed to supply certain information requested by the
Union, all in violation of Section 8(a)(1) and (5) of the Act.
The complaint also alleges that Respondent caused the arrest
of a union agent, later attempted to eject him and arrest him
again when he sought to service a union contract, made
statements to employees indicating it would be futile to sup-
port the Union, bypassed the Union and dealt directly with
an employee regarding a grievance and threatened that em-
ployee with reprisals if the grievance was not withdrawn, in
violation of Section 8(a)(1) of the Act.
Respondent filed timely answers, denying the acts alleged
and that it has committed any unfair labor practices and as-
serted certain affirmative defenses which will be considered,
infra.
The parties were provided full opportunity to introduce
relevant evidence,1 to examine and cross-examine witnesses,
to argue orally, and to file briefs. Posttrial briefs have been
filed by counsel for the General Counsel, Respondent, and
the Union and have been carefully considered. Upon the en-
tire record in the case, including my observation of the wit-
nesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, Respondent, a corporation, with of-
fices and places of business in Avenel, Linden, and East
Brunswick, New Jersey (Avenel, Linden, and East Brunswick
terminals), has been engaged in the interstate and intrastate
transportation of freight. Annually, Respondent, in conduct-
ing its business operations described, shipped from its
Avenel, Linden, and East Brunswick terminals goods valued
in excel of $50,000 directly to points outside the State of
New Jersey. Respondent admits, and I find, that it has been
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
The Respondent admits, and I also find that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years the Union represented office clerical and
building and property maintenance,2 employees employed by
Carolina Freight Carriers Corp. (Carolina Freight) at its
freight terminal located at Avenel, New Jersey. The most re-
cent collective-bargaining agreement between the two parties
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550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was effective from April 1, 1994, through March 31, 1998.
It contained a clause binding the Company’s successors and
the usual union-shop and dues-checkoff clauses; a grievance-
arbitration clause providing for referral of unresolved griev-
ances to the New Jersey-New York Joint Area Committee,
and then to the New Jersey State Board of Mediation; a
clause (art. 26, sec. 5) providing for union access to the fa-
cility during working hours to adjust grievances, investigate
working conditions, collect dues, and ascertain that the
agreement is being adhered to, providing there is no interrup-
tion in business and clauses providing that terminal seniority
determines the order of layoff and recall with seniority rights
to be retained for a continuous layoff up to 5 years; and pro-
vides rights to transfer to a new branch, terminal division, or
operation in the order of the unit employees’ company or
classification seniority, with first preference to employees in
those terminals or operations which are affected in whole or
in part by the opening of the new facility and grants seniority
based on the date of hire at the terminal into which the em-
ployee is transferring (art. 7, sec. 8(c)).
The agreement was described by Union Business Agent
Robert Dudik as a white paper contract which is independent
of, and has no ties to, any other contract covering employees
represented by the International Brotherhood of Teamsters.
An office clerical seniority list prepared by Carolina
Freight as of August 1, 1995, but received by the Union on
September 25, 1995, lists seven unit employees, in order of
their seniority, Robin Faust, Lee Marziali, Linda Catonzaro,
Joan Blake, Barbara Lupton, Linda Hamlett, and Angelo
Apruzzi. Faust was union shop steward and Blake was her
assistant. The two least senior employees, Hamlett and
Apruzzi were on layoff.
On or about August 11 or 12, 1995, Respondent purchased
Carolina Freight, including its Avenel terminal. Until imme-
diately prior to September 25, 1995, Carolina Freight contin-
ued to operate the Avenel terminal. By letter dated Septem-
ber 11, 1995, Respondent advised the Union that effective
immediately, dues-checkoff billings were to be mailed di-
rectly to Respondent’s Arkansas address for payroll process-
ing. Also, in September 1995, Respondent, by its Linden ter-
minal manager, Dan Smith, informed the Avenel clericals
that they were employed by Respondent and began applying
the terms and conditions of the collective-bargaining agree-
ment to them.
B. The Evidence Adduced by Counsel for the General
Counsel in Support of the Allegations of Withdrawal of
Recognition and Refusal to Apply the Collective-
Bargaining Agreement to All Unit Employees at Avenel
or to Furnish Relevant Information to the Union, and
the Arrest and Harassment of Union Agent Dudik
According to Union Agent Dudik, sometime in mid-Au-
gust the Respondent filed a request for change of operations
with the Multi-Region Change of Operations Committee es-
tablished under the National Master Freight Agreement
(NMFA), to which Respondent and Carolina Freight, among
other employers, were parties, covering their drivers and
other employees, but which did not include Respondent’s of-
fice clerical and maintenance employees, who were covered
under a separate, white paper agreement which did not incor-
porate any provisions of the NMFA. Among other changes
sought by Respondent, it applied to close and to move its
Avenel operations to Linden.
The notice which Dudik received made reference to the
transfer of the dock people and drivers at Avenel but not
clericals employed there. Dudik contacted Steve Froias, Re-
spondent’s director of labor relations, on September 7, 1995,
and learned that ABF did not intend to transfer the office
clericals from Avenel to Linden because they had enough
employees at Linden and didn’t need any more office
clericals or maintenance. Dudik explained that the Union’s
contract had a successor clause and other provisions for the
employees to be transferred and he would file a grievance
because of ABF’s refusal to transfer them to Linden.
By cover letter dated September 12, 1995, Dudik for-
warded a grievance to Froias and to Andrew Anderson,
Carolina Freight director of labor relations, claiming a viola-
tion of various, described articles and sections of its labor
agreement with ABC arising from ABF’s refusal to offer em-
ployment at Linden to the office clericals, and sought an ex-
pedited arbitration.
On September 19, 1995, Dudik received a copy of the
multipage decision of the Multi-Region Change of Oper-
ations Committee. That decision approved ABF’s proposed
change of operations, nationwide, but with modifications and
clarifications regarding employment rights of employees cov-
ered by many labor agreements between Carolina Freight and
Red Arrow, another carrier also purchased by ABF, and var-
ious locals of the International Brotherhood of Teamsters,
paragraph 17 of that decision provided, inter alia, that
‘‘Union and non-union office employees shall be dovetailed
as set-out in paragraph 1 of the decision.’’ Paragraph 1, sub-
paragraph A, makes reference to article 5, section 2(c) of the
NMFA as the basis for dovetailing all bargaining unit em-
ployees affected by combining or eliminating ABF and Caro-
lina Freight Carriers/Red Arrow facilities and includes all
maintenance and office employees. Subparagraph A con-
cludes by excluding from the requirements of the paragraph,
local unions 673, 705, and 710 (dock and office) which are
not signatory to the NMFA.
Dudik, who had appeared before the Change of Operations
Committee, on September 14 or 15, opposing its exercise of
jurisdiction over the Local 701 unit at Avenel on the basis
of its white paper contract and the fact that he had a pending
grievance which he was pursuing under his contract protest-
ing the failure to transfer to Linden his bargaining unit em-
ployees, disagreed with the committee’s decision. Dudik con-
cluded that the committee’s decision did not apply to the
Local 701 unit and it did not address his particular problem
which he was pursuing through his grievance procedure, in
spite of the fact that his Union was not exempted from the
reach of the decision as three other local unions were. Ac-
cording to Dudik the committee’s decision was prepared and
rendered as a blanket statement regarding union and non-
union employees because it was covering facility transfers
and closings taking place in many States, including some
right-to-work states where union membership could not be
compelled pursuant to employer/union agreement, under the
Act.
Between September 19 and 25, 1995, Dudik spoke with
Froias. In this conversation Dudik said he was aware from
the office clericals that the Company had told them they
were going to be allowed to transfer and, if this was so, he
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551ABF FREIGHT SYSTEM
would withdraw the grievance. Froias said he would recog-
nize the Union as representative of the office clericals and
maintenance at the Linden facility. Dudik waited until the ac-
tual transfer took place on September 25, and then by letter
dated October 3, 1995, informed Froias that the Union was
withdrawing the grievance dated September 12 pertaining to
the recognition of the office clerical and maintenance em-
ployees without prejudice.
By letter dated September 22, 1995, Dudik had informed
ABC that, effective September 25, Faust had been appointed
to serve as shop steward and Joan Blake had been appointed
alternate. By September 25, five of the seven Avenel office
clericals had been transferred to Linden. The two least sen-
ior, Hamlett and Apruzzie, were still on layoff.
After the transfer of ABF’s operations from Avenel to Lin-
den, Local 560, Teamsters entered a claim to jurisdiction
over the drivers, dockworkers, office clericals, and mainte-
nance employees, Dudik acknowledged the Local 560 claim
to the drivers and dock people in accordance with the NMFA
and past practice, but insisted on continued representation to
the office clerical and maintenance employees. By letter
dated October 2, 1995, Dudik confirmed the Local 701 rep-
resentation and retention of jurisdiction of these employees
at Linden under white paper contracts. A copy was noted as
being forwarded to ABF Terminal Manager Dan Smith. No
company response was received, but Froias, in conversation
with Dudik, agreed to abide by any internal union decision.
Local 560 withdrew its claim to represent the office clericals.
Dudik now requested an updated seniority list of office
clericals at Linden. In November he received from ABF a
list entitled ‘‘Office Seniority Roster,’’ containing the same
seven names, in order of seniority with the last two noted
on layoff, as he had on September 25, from Carolina Freight.
The only other person Dudik knew to be employed in the of-
fice at Linden was Christina Knipe, and she was a confiden-
tial employee. Dudik was not informed, at this time, after the
office transfer to Linden, that ABF employed any other of-
fice clericals at Linden, who were either on layoff or on tem-
porary transfer to another site or, although not physically
working at Linden, had a right of return to that facility.
Dudik did become aware from the shop steward or her alter-
nate, that Deborah Fee was in and out of the Linden facility
for the first week. One day she was there and then the next
she was not. Then she disappeared. Dudik learned of the na-
ture of Knipe’s employment on a visit to the Linden site on
September 25, when Manager Smith informed him, on his
inquiry seeking clarification of Knipe’s job duties, that she
was the office manager.
In later communication with Froias, in November 1995,
Dudik raised issues regarding posting of bid start times, tak-
ing all-purpose leave days in half-day increments and vaca-
tions in 1-day increments, and installing a bulletin board. In
a letter dated November 17, 1995, Froias responded to these
issues concerning the ‘‘ABF, Linden, New Jersey Union of-
fice personnel.’’ It was at this time that Froias forwarded an
updated copy of the ‘‘Linden, New Jersey office seniority
list.’’ After filing a grievance dated November 29, under the
union contract protesting the Company’s refusal to honor a
practice of utilizing vacations in 1-day increments, Dudik
withdrew the grievance after leaning the employees were not
interested in pressing it. Another grievance, filed the same
time, involving the all-purpose days, led to a compromise
settlement signed in August 1996, under which ABF agreed
employees could utilize 3 of the 6 all-purpose leave days in
half-day increments and the Union agreed to withdraw a sub-
mission of the grievance to the New Jersey State Board of
Mediation.
On January 22, 1996, the Union filed another grievance
that ABF was violating the contract subcontracting and wage
and job classification clauses by laying off office clerical
Barbara Lipton on January 15, 1996, while Christina Knipe
was performing bargaining unit work on accounts payable
and cost reports and Jim O’Donnel, operations manager, was
making appointments for deliveries. The grievance, first sub-
mitted to the Joint Area Committee which deadlocked on the
matter, was pending arbitration at the close of hearing.
In a stipulation between the parties, it was agreed as fol-
lows: The five earlier named employees, employed at the
Carolina Freight Terminal in Avenel, were transferred to Lin-
den effective September 25. Immediately prior to September
25, there were four office clerical employees employed at the
ABF Terminal in Linden: Maxine Kulinich, Arlene Pankiw,
Christine Knape, and Debra Fee. Although not part of the
stipulation the record establishes that these office clericals at
Linden were unrepresented. Kulinich was laid off effective
September 25. Pankiw was laid off on October 3. Fee com-
menced work in Newark at a Newark facility of ABF on Oc-
tober 9 and commended working in Linden again on Feb-
ruary 12, 1996. From September 25, 1995, the first day of
the combined operations, until sometime in April 1996,
Knipe was a confidential employee. Knipe went on maternity
leave on January 31, 1996, and returned from maternity leave
sometime in April 1996, but to Avenel. As noted earlier,
Lipton was laid off on January 22, 1996.
Aside from processing grievances with respect to unit em-
ployees employed at Linden, Dudik was aware that ABF was
also applying other provisions of the 1994 to 1998 labor
agreement to the employees, including making contractual
benefit contributions, paying contractual wages, and provid-
ing contractual holidays and vacations. All of these employ-
ees were union members who had previously been employed
in the bargaining unit represented by Local 701 when located
at Avenel and owned by Carolina Freight.
By certified letter dated February 22, 1996, Dudik, among
other union officials, received notice of a second change of
operations involving its terminals at Linden and East Bruns-
wick, New Jersey, and Local 560 and 701, which ABF sub-
mitted to the New Jersey/New York Joint Area Committee
for placement on its March agenda. ABF proposed to transfer
these entire operations to a ‘‘new’’ facility at Avenel, New
Jersey. The Avenel facility was the one now owned by ABF,
from which its operations had been transferred to Linden, as
of September 1995 after the purchase of Carolina Freight in
August. In its proposal ABF justified this change as giving
the Company better utilization of an owned facility as op-
posed to based facilities and reducing fixed costs by elimi-
nating one facility. ABF then noted the change will afford
better service to its customers in that the combined terminals
will be able to do more direct loading inbound and outbound.
ABF proposed offering transfer opportunities to all employ-
ees at Linden and East Brunswick and dovetailing these two
seniority lists, active to active, and inactive to inactive. The
move from Linden to Avenel was to be made on April 1,
1996, and from East Brunswick to Avenel on April 15, 1996.
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552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The proposal attached an ‘‘Office Seniority Rooster’’ at Lin-
den which now for the first time listed, in addition to the
seven previously named Local 701 union members and unit
employees, two of whom were on layoff, four additional
named employees, to wit, Debra Fee, as second in seniority
to Robin Faust, Christina Knipe, on maternity leave, Arlene
Pankiw, on layoff since October 3, 1995, and Maxine
Kulinich, on layoff since September 25, 1995.
As Dudik noted this list was different from the prior list
he had received in November 1995. As to Fee, he understood
that on her return to the Linden facility in February 1996,
she was a confidential employee replacing Knipe, performing
the same duties that Knipe had previously performed and oc-
cupying the same desk Knipe had previously occupied next
to the terminal manager’s office.
Among other lists attached to the Change of Operations
proposed, was another seniority list of four nonunion office
employees employed at East Brunswick, Rosemarie Todaro,
Nancy Petruzziello, Linda Soltis, and Ed Dalley.
When the case was heard before the Joint Area Commit-
tee, Dudik objected to the four new names now appearing on
the Linden office clerical employees seniority list. He also
sent a letter, dated March 4, 1996 to ABF, asking for job du-
ties, work and salary history, and payroll records on the four
added to the Linden seniority roster as well as the four East
Brunswick clerical positions. As the Change of Operations
hearing was scheduled for March 7 he requested the informa-
tion be provided timely. ABF did not reply to this request
in writing, but Dudik did meet with Froias and Terminal
Manager Tom Platt the evening of March 6 when they re-
sponded to his letter. That response did not satisfy Dudik and
he protested at the March 7 hearing. Froias had told him on
March 6 that Fee was not a confidential but that Knipe was.
On March 7, 1996, the Joint Area Committee issued its
decision approving ABF’s request, including dovetailing the
three seniority lists on an active to active and inactive to in-
active bases at the new Avenel terminal, but excluding C.
Knipe. Todaro and Petruzziello from East Brunswick are to
be dovetailed into the active list, but Soltis and Dalley, as
part-time employees (also from East Brunswick) will remain
in their seniority positions unto themselves. These East
Brunswick clericals were unrepresented. By follow-up writ-
ten request dated April 10, 1996, Dudik sought a current of-
fice clerical seniority list at the ABF Avenel terminal. Froias
faxed Dudik the list dated April 15, 1996. It breaks the em-
ployees into three main groups, active full-time employees as
of February 14, 1996, inactive full-time as of the same date,
and active part-time roster as of the same date. The active
full-time roster, in addition to union members, Faust,
Marziali, Cantanzaro, and Blake, includes Fee, Todaro (mis-
spelled Todard), and Petruzziello. The inactive full-time ros-
ter, in addition to union members Lipton, Hamlet, and
Apruzzi, included Pankiw and Kullnich. The active part-time
roster includes Soltis and Dalley.
The operations proceeded to move as proposed, with the
office employees, ‘‘at Linden moving to Avenel as of April,
1996, and the office employees at East Brunswick moving to
Avenel as of April 15, 1996.
In reviewing the new Avenel seniority list, Dudik noticed
that Deborah Fee, who, he believed had been a confidential
employee, was listed, and the employees were listed in three
separate groupings, and were dovetailed, each of which was
inconsistent with the labor contract. The employees who
came from other terminals should have been and failed, in
accordance with article 7, sections 6A. and C. of the labor
agreement. Nothing in the labor agreement permits setting up
separate active and inactive seniority groupings, that prin-
ciple comes from the NMFA. Dudik voiced his objections to
Froias, and when they were unsuccessful the Union brought
suit in Federal District Court under Section 301 of the Act
claiming a breach of the agreement. That suit is presently
pending.
By letter dated April 18, 1996, Dudik made an information
request for the addresses and social security numbers of the
seven employees ABF had added to the office clerical senior-
ity roster at Avenel. They were Fee, Todaro, Petruzziello,
Pankiw, Kulinich, Soltis, and Dalley, Earlier, Platt, the
Avenel terminal manager, had turned down an oral request,
Dudik wanted this information to forward Local 701 applica-
tions for membership and enforce the union-security clause
of the contract. The social security number provides ready
and accurate identification of all names entered on the Inter-
national Union’s computer. Dudik never received a response
to this written request.
Also, on April 18, 1996, Dudik filed a written grievance
with ABF alleging a breach of the contract arising from em-
ploying part-time workers Linda Soltis and Ed Dalley while
full-time workers Barbara Lupton and Linda Hamlett are on
layoff, relying on articles 7, Seniority and 26, General Provi-
sions, section 1 Part-Time Workers of the office clerical
agreement. The Union demanded 8 hours’ pay for any day
a part-time worker was employed when senior full-time em-
ployees are on layoff, plus health, welfare, and pension con-
tributions and claimed a continuing liability.
By handwritten response on the grievance, signed by
Branch Manager Platt on April 19, ABF denied the grievance
in the following language:
The Office Clerical Agreement Referenced Above Ap-
plies Only to Members of Local 701. ABF Avenel Is
A Non-Union Office That Happens To Employ Some
Union Office Personnel As A Result Of The Consolida-
tion Of ABF AND CFCC. The Office Clerical Agree-
ment Applies To Those Individuals Wage Rate, HW &
P, Vacation Benefits, And Seniority Only! It Is Other-
wise Totally And Completely Un Recognized And
Means Nothing Else At ABF Avenel. This Claim Is
Denied.
Upon receipt of the denial, Dudik requested a meeting of
the Company pertaining to the grievance.
On April 22, the date he received the Company’s response,
Dudik and the Union’s president, Dan DeSanti, had been re-
ceiving the grievance. Dudik then called Shop Steward Faust,
informed her of the Company’s answer to the grievance and
asked to be transferred to the terminal manager’s office. He
got Platt on the phone, briefly went over the grievance with
him, and said he wanted to come down to discuss it. A time
of 2 p.m. was scheduled for them to meet. When Dudik ar-
rived at 2 p.m. Platt was not there and Knipe told him Platt
had stepped out.
Dudik then went to Faust, and asked her to accompany
him to the other employees who were there to hand them ap-
plications for Local 701, Dudik then went to three employees
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553ABF FREIGHT SYSTEM
in turn, Debra Fee, Rosemarie Todaro, and Linda Soltis,
handing them form letters listing the monthly dues and initi-
ation fee amounts and requesting that they complete an appli-
cation for membership and return with initiation fee and dues
within 7 days or by the 31st day of their hire, whichever is
later, and noting the Union’s intent to enforce the collective-
bargaining agreement and demand their discharge if the mon-
eys are not received timely. Dudik also gave them his busi-
ness card and an application for union membership. Each let-
ter had the employee’s name, and date of hire. For Soltis and
Todaro this date was April 15, 1996, and for Fee it was Feb-
ruary 14, around the date she returned to Linden. After being
introduced by Faust, to each employee Dudik explained he
was giving her an application to join Local l701 and a letter
that’s self-explanatory as to membership in Local 701, and
said if she had any questions not to hesitate to call the num-
ber on his card. Dudik explained he was polite, did not raise
his voice or threaten any of the employees. After these inter-
changes, the three employees continued working. They all
worked at desks situated in an open room, with the terminal
manager’s office separated by a floor-to-ceiling partition with
glass windows. Two of the employees, Fee and Soltis,
thanked him, and Todaro referred to the misspelling of her
name, which Dudik explained he had gotten off the seniority
list.
Dudik next inquired when Platt would return. Knipe told
him later in the afternoon. Dudik left at 2:10 p.m. and re-
turned at around 3:45 p.m. He entered the facility into the
ABF driver’s breakroom from the dock and saw Platt who
had his hand raised and said, ‘‘[G]et off the property.’’
Dudik said he had an appointment to see him to discuss the
grievances they had spoken about in the morning. Platt said,
‘‘[Y]ou didn’t tell me that you were going to hand applica-
tions for the Union to the other nonunion clericals.’’ Dudik
explained he requested their addresses so he could mail these
to the employees, but since ‘‘you refused to give me their
addresses I have no alternative other than to hand deliver
them.’’
Platt said, ‘‘[Y]ou’re threatening my employees.’’ Dudik
asked in what manner. Platt said, ‘‘the letter you gave them
is threatening.’’ Dudik said he couldn’t help that, ‘‘the con-
tents simply say I’m enforcing the security clause in the con-
tract.’’ Platt repeated, ‘‘[G]et off the property, you’re not
coming in here.’’ Dudik remained in the breakroom, but his
request to see the shop steward was denied. When he refused
to leave, after Platt told him to get off the property or he’d
call the police, Platt called to another person in the office to
call the Woodbridge Police. Platt was in a highly agitated
state.
Two police officers arrived within minutes and Platt said
he wanted Dudik off the property or he’d have him arrested.
The policemen asked Dudik to step out into the vestibule
where he explained he was the union business representative
for the clerical employees, he had an appointment to see
Platt, and he had union cards to hand to nonunion employ-
ees. He wanted to do his job and leave and he wasn’t there
to disrupt their business. The policemen asked to see the
union contract and any access to the premises language in it,
and Dudik showed him article 26, section 5. He said, ‘‘[I]t
seems clear to me, let me talk to the terminal manager.’’
After learning that Platt rejected his reliance on the contract
and still wanted him off the property, Dudik proposed that
the Company either provide him with the addresses or permit
him, accompanied by the police officer, to hand out the two
remaining applications in 2 minutes. The officers left and re-
turned to say, ‘‘[H]e wants you to leave or he’s going to
press charges.’’ The policemen suggested Dudik call his
boss, Platt was called back into the vestibule, and Dudik ac-
companied the policeman into Platt’s office where a call was
placed to Dudik’s office. One policeman got Union President
De Santi on the line, explained the situation, and Dudik then
informed De Santi in the presence of the policeman and Platt
that he intended to hand deliver the envelopes as his only al-
ternative and hang up. When the police officer then asked
Platt what he wanted to do, Platt said arrest him. Now stand-
ing in the general office next to Platt’s office in plain view
of certain of the office clerical employees present, Robin
Faust, Joan Blake, and Debra Fee, handcuffs were placed on
Dudik, he was arrested and taken out to the Woodbridge po-
lice station where he was booked.
During the incident Dudik testified he spoke in a business-
like manner, and did not threaten Platt. Platt was highly agi-
tated, waving his hands, expressing himself in a loud voice,
repeating his intent to have Dudik arrested.
After being booked, Dudik was released on his own recog-
nizance and De Santi drove him back to the Avenel facility
where he had left his car. The criminal complaint recites that
‘‘after notice against trespass was given by . . . Platt . . .
[Robert Dudik] remained on the premises and refused to
leave, in violation of N.J.S.A.2C:18–3B.’’
A criminal investigative report prepared and signed by a
patrolman Hogan, the arresting officer, which union counsel
had received from the Township of Woodbridge, corrobo-
rates the substance of the facts relating to the incident as tes-
tified to by Union Agent Dudik. The report describes Platt
as being the complainant and the crime charged as being de-
fiant trespass.
Dudik had two objectives in returning to Avenel. One was
to complete the hand delivery of the union applications to the
two remaining nonunion day clericals. The other was to see
Louis Mastroposqua, the Local shop steward at Roadway Ex-
press, who had telephoned him that morning to report he had
received a dues receipt of an employee not employed at this
terminal. Dudik had then arranged to see him late in the
afternoon about this receipt and to renew his reports on cas-
ual employment by Roadway Express which were used by
the Union to check against contributions submitted by the
employer to the various funds. While Local 701 did not rep-
resent the ABF drivers it did not represent the Roadway Ex-
press Drivers.
De Santi agreed to distribute the remaining applications to
Dalley and Petruzziello and Dudik accompanied him to the
top of the ramp leading to ABF’s dock and waited there for
De Santi to return. When he did, he and De Santi went out
to the parking lot by fuel pumps near the Roadway Express
dispatch office entrance about 50 feet from the Roadway en-
trance to wait for Mastropasqua to return from the road. Platt
suddenly drove up quickly into the lot, stopped his car and
hollered at Dudik, ‘‘I told you to get off the property, I’ll
have you arrested again.’’ Dudik said, ‘‘I’m not here to see
you, but to see Roadway, I’m the bargaining agent for Road-
way.’’ Platt responded, he didn’t care, and repeated his order
to leave or be arrested. Dudik said, ‘‘[D]o what you have to
do.’’ Platt drove off and within a short time two other police
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554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
officers drove up and went to talk with Platt who was now
standing near the Roadway Express entrance. One police of-
ficer returned and told Dudik that ‘‘Platt wants you off the
property. He’s going to have you arrested.’’
Dudik explained about his prior arrest for trespassing, but
now he had union business with Roadway and both he and
De Santi presented their business cards. The officer left to
speak to Platt, returned and said he owned the property
Roadway leased from him and repeated Platt’s threat. Dudik
asked if it made sense that Roadway would leave a part of
this facility and have to get clearance from ABF on who vis-
its their property, and especially a union official. The officer
said he would call his lieutenant, left, and returned to say he
had been instructed to leave and asked how long he was
going to be there. Dudik said it would take 15 to 10 minutes
to half-an-hour to take care of his union business. In the
meantime the shop steward had appeared. Now Dudik and
De Santi went up to the Roadway office, obtained a positive
response to an inquiry to the Roadway terminal manager that
he had no problem with their being present, and Dudik pro-
vided to transact his union business with Mastropasqua and
he and De Santi then left. The dues receipt the steward had
received and which Dudik took for an employee employed
at the Roadway Mount Holly, New Jersey terminal. After re-
ceiving the casual reports, Dudik instructed the steward on
how to fill them out and went over some other matters.
During his cross-examination, Dudik agreed that ABF
never made any welfare or pension contributions on behalf
of employees Fee, Knipe, Pankiw, Kulinich, Petruzziello,
Todaro, Soltis, or Dalley, nor did Local 701 ever receive any
dues deductions made from their pay. Indeed, ABF never ap-
plied the Local 701/Carolina Freight collective-bargaining
agreement to any of them.
Dudik also explained that Linda Hamlett and Angelo
Apruzzi had been laid off in March and April 1995, but they
retained their seniority positions and remained in the bargain-
ing unit. During their layoffs they were not required to pay
union dues. They can either obtain a withdrawal card and
freeze their dues or accumulate arrears in dues which are
only payable on recall. Under either option, the laid-off em-
ployees retain their seniority and inclusion in the unit. As to
newly hired employees, Dudik waits 30 days before sending
an application to join. But the new employees must complete
a period of 60 days probation before obtaining seniority,
which dates back to the first day of employment.
Dudik now was asked and disclosed that even before he
filed the January 1996 grievance on behalf of Barbara
Lupton, he had some information that Christina Knipe was
performing bargaining unit work about a week after the Sep-
tember 25, 1995 transfer from Avenel to Linden. However,
he didn’t pursue a grievance then because during the first
few weeks there was chaos as the newly transferred Avenel
employees arrived and the preexisting ABF Linden employ-
ees were being laid off or transferred out. Dudik refrained
from grieving to give everyone an opportunity to get ori-
entated during the transition and because it was difficult to
obtain information, the steward, Robin Faust, having been
kept back in the old Avenel terminal for a few weeks to fin-
ish up certain work while the other four employees, includ-
ing the alternate steward Joan Blake were immediately trans-
ferred. In October, Dudik did inform the Company that it
could not perform bargaining unit work with supervision and
office confidentials.
Dudik also understood from his members that on the trans-
fer on September 25, 1995, the prior Linden, ABF office
clericals were transferred to other terminals. He was aware
that Fee remained at Linden, off and on for a week, went
to Newark, then came back, until she was transferred after
a week to Newark to train the people there. And he had no
problem with that. He was also unaware that Pankiw worked
in Linden until October 3, 1995. Dudik explained that in ad-
dition to the confusion in Linden, where 80 drivers were
showing up every day for work for only 40, there was great
hostility and friction between the two groups of office
clericals, with the group from Avenel replacing the prior Lin-
den group. The Linden group did not accept the Avenel em-
ployees readily.
While Dudik became aware of the prior Linden nonunion
clericals being transferred out, he acknowledged that ABF
never informed him that they had left or where they had
gone. But it will be recalled that the ‘‘office seniority roster’’
he received from ABF in November 1995, referred to in
Froias’ letter as the ‘‘Linden, New Jersey office seniority
list,’’ listed only the seven Local 701 union members, with
two on layoff.
Dudik also acknowledged learning that Fee had returned to
Linden in February 1996, but believed, based on the report
of Steward Faust and other employees, that she was perform-
ing the duties of confidential employee Knipe who was then
on maternity leave. Yet, when he received ABF’s change of
operations application on February 23, Fee was included in
the Linden office seniority roster without any indication of
a confidential status. (On the same roster, Christina Knipe’s
name also appeared now for the first time, without any indi-
cation as to status other than being then on maternity leave.
And Dudik’s March 4, 1996 request made of ABF as to their
job classification and work and salary history went unan-
swered.)
Dudik agreed that when he approached the nonunion em-
ployees at the Avenel office in April 22 to sign them up as
members of the Union he knew that ABF was not applying
the union contract to them. By this time the Union had
brought suit to contest ABF’s refusal and failure to apply the
white paper contract to the unit clerical employees now em-
ployed at the Avenel terminal. Dudik also acknowledged that
he never informed Platt that he was coming to his office to
distribute membership applications. And when Platt con-
fronted him on his second visit to the facility on April 22,
he did not tell Platt that he had returned, in part, to distribute
the last two union applications. He also had never been ar-
rested, expelled, or threatened with arrest on any prior or
subsequent occasion when he visited the Avenel office to
conduct union business.
Dudik’s very next visit to Avenel was the next morning,
April 23, when he spoke to Platt about the part-time griev-
ance which he had wanted to discuss the day before. Other
matters were also discussed and resolved, including starting
times and vacation scheduling, but Platt would not agree on
the grievance and Dudik left after informing Platt he would
submit it to the Committee.
Dudik also sent identical letters dated May 21, 1996, to
ABF requesting discharge of Debra Fee, Nancy Petruzziello,
Rosemarie Todaro, Linda Soltis, and Ed Dalley. Under the
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555ABF FREIGHT SYSTEM
union-security clause of the labor agreement for failure to
tender dues and initiation fees. When ABF failed to comply
with these requests, the Union filed another grievance which
is presently pending.
In later testimony Dudik responded that by October 1995,
only the Avenel employees the Union had previously rep-
resented in bargaining with Carolina Freight were performing
the office clerical work at the Linden terminal. He was aware
of only one other employee, Christina Knipe, but Manager
Smith told him she was an office confidential. At no time
before its second change of operations application filed in
February 1996, did ABF advise him that there were other,
nonunion employees with seniority rights to return to Linden.
Donato (Don) De Santi, the Local 701 President, corrobo-
rated Dudik’s testimony that he telephoned ABF in the
morning of April 22, 1996, and when he heard Dudik say
to Platt on the phone he wanted to come down to discuss
the grievances. Before making the call he had agreed that
Dudik should also go to ABF that day to hand deliver letters
and union applications to office clerical employees who were
not members of the union but whose addresses Dudik had
sought, unsuccessfully to secure from the Company. Since
Dudik had to go to the terminal to discuss the grievances he
had instructed him to go with cards and hand deliver the let-
ters.
De Santi corroborated Dudik’s arrest, his receipt of the
telephone call from Dudik while at the terminal, their joint
return to the ABF and Roadway Express Avenel terminals
later in the afternoon and Platt’s direction to Dudik to leave
the area or face a second arrest. De Santi recalled Platt being
very agitated when, in spite of their informing him they had
union business with Roadway, he told them that if they
didn’t leave, he’s going to call the police. Neither he nor
Dudik raised their voices, threatened Platt with physical as-
sault, or cursed or used obscenities.
De Santi agreed on cross-examination that the Union could
have mailed to the Avenel office the letters and applications
directed to the employees, but chose not to do so.
Robin Faust also testified for the General Counsel. She
was a clerk who performed credit and collection work for
ABF. She had been a Local 701 member, and shop steward
for 13 years. While employed by Carolina Freight at Avenel
prior to October 1995, the office clerical work performed in-
cluded payroll, tracing of freight shipments, customer serv-
ice, including taking pickup orders, and LS & D (handling
insurance claims arising from damage to freight shipped out
from the terminal). The clerical duties remained pretty much
the same after the purchase by ADF and their transfer to Lin-
den. The employees different shift hours also remained the
same. With respect to service areas covered, they remained
basically the same after the move.
A couple of weeks prior to the move to Linden, Dan
Smith, the ABF terminal manager at Linden spoke to the of-
fice clericals working days at the Avenel Terminal. Faust,
Cantanzaro, and Marziali were present. He told them they,
the office clericals, would be going over to the Linden facil-
ity and not be upset. It wasn’t a friendly atmosphere because
‘‘the girls were upset about you coming in, but they would
train you and help you in any way they could.’’ Smith also
told them the Company was trying to place the Linden
clericals in other ABF facilities. Faust’s impression, as a
consequence of these remarks, was that there weren’t enough
jobs for everybody, from both the Avenel and Linden offices,
and the Linden employees were going to be placed in other
terminals.
When she arrived at Linden, and started working there in
October 1995, the only new employee Faust saw was Chris-
tina Knipe. No ABF representative told her there were office
clerical employees other than those on the list the Union re-
ceived in November, 1995, or there were any others who
were in layoff or had a right to return to Linden or were on
a temporary transfer from Linden to another facility.
Knipe’s desk was right outside Manager Smith’s office.
When Knipe later left on maternity leave, none of the unit
employees picked up her work. Faust also corroborated the
union complaint in October 1995, of bargaining unit work of
appointments and payroll preparation being done by manage-
ment. A meeting was held with Smith at which he responded
that payroll was never performed by unionized people. At
Linden, Knipe was preparing the payroll.
Faust first testified she never saw Debra Fee working at
Linden. She later noted that in February 1996, Fee did come
into the office, working at the desk Knipe had previously oc-
cupied and performing the office payroll just as Knipe had
done. No one informed Faust that Fee was a unit employee
at Linden.
Faust corroborated Dudik that after receiving his phone
call the morning of April 22 and discussing part timers work-
ing there, she transferred him to Platt, and after Platt trans-
ferred the call back to her, was told by Dudik that he had
a meeting with Platt at 2 p.m. and would be in to see her.
She later took Dudik around after lunch, and introduced him
to nonunion employees Fee, Soltis, and Todaro and corrobo-
rated their interchanges and the short time he was in the of-
fice. When Knipe told Dudik that Platt would be back later
he left later, around 4:15 or 4:30 p.m. she saw Dudik in
handcuffs in front of Platt’s office standing with a police of-
ficer. Two other employees, Fee and Cantanzaro, could see
him. After a few minutes, Dudik was taken away and Platt
then walked through the general office wiping his hands and
making comments which she didn’t hear.
Under cross-examination, Faust did not recall seeing Fee
at Linden before February 1996, or Kulinich, or Pankiw. She
had only been at Linden for about 5 minutes in the morning
of September 25, before returning to Avenel for 2-1/2 weeks,
before returning to Linden. She only knew that ABF Linden
employees were at Linden during the first week to train the
Avenel transferees and assumes Fee was there and knew
Pankiw was. She did not inform Dudik about these nonunion
office clericals, and Joan Blake told her about these employ-
ees training the newcomers.
Faust also agreed that Linden didn’t serve the Staten Is-
land, Hillside, and Brunswick areas which Avenel had, and
these areas went to East Brunswick and Monmouth facilities
after the move in September 1995. Faust later described the
common geographic areas serviced by Avenel and Linden in
1995 as Linden, Elizabeth, Roselle, Carteret, and
Woodbridge, all in New Jersey. These commonly served
areas were larger in number of deliveries than those three
areas which were not delivered from Linden after the trans-
fer. However, when the transfer back to Avenel was made
in April 1996, the Monmouth and Staten Island work did not
come back to Avenel.
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556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Joan Blake testified that on the transfer from Avenel to
Linden on September 24, 1995, she saw Deborah Fee on and
off for a few weeks and then not at all. Arlene Pankiw con-
tinued to work for a week and a couple of days and then
went to ABF’s northern New Jersey terminal. Knipe went to
the front of the office outside the manager’s office when Fee
left and continued to the end of January 1996. Blake cor-
roborated Faust, that about a week or so before the transfer
Dan Smith had told the Avenel office clericals that they
shouldn’t expect the girls (at Linden) to really welcome them
because they were crying and very upset. Blake worked on
bills of lading and all the clerical work was really no dif-
ferent after the move. After the transfer back to Avenel in
April 1996, the clericals continued to perform the same work
and the areas served remained the same.
C. The Evidence Relating to the Allegations of By-
Passing the Union and Threatening an Employee with
Reprisals for not Withdrawing a Grievance and
Informing Employees it Would Be Futile to Support
the Union
Prior to January 1996, Blake had worked a 12 noon to 8
p.m. shift. When Lupton was laid off in January 1996, she
was placed on the 4 p.m. to 12:30 a.m. shift. She continued
on this shift on the transfer back to Avenel on April 1, 1996.
After arriving at work on April 22, she saw Dudik on the
telephone in Platt’s office. She heard he had been arrested
and as he left, Deborah Fee got up from her desk, went to
the window and said she wanted to see Bob Dudik taken out
in handcuffs. Shortly after Dudik left, Tom Platt came out
of his office, wiped his hands, said, ‘‘Well, I got rid of that
one,’’ and then as he passed Blake’s desk, told her she no
longer had a leader, that he got rid of him.
At the end of April 1996, starting times were posted for
bidding. Article 16, section 9 of the contract requires that the
employer shall bid all starting times on a quarterly basis in
accordance with seniority. Blake bid for the 8:30 a.m. to 5
p.m. time slot and was assigned that time. After working 3
days on her new shift, Blake was called in by Platt and told
that there was a girl out on vacation and he was changing
her hours to a shift running from 1 to 9 p.m. Blake next
complained to Faust that after just starting on days she was
back on nights. Faust said she would call Dudik. Faust re-
ported back that Dudik had filed a grievance on her behalf.
Article 16, section 9 provides, inter alia, that no change of
designated starting time shall be made unless mutually
agreed to by the Union and the Employer. Absent agreement,
the issue may be submitted to arbitration. Section 7 provides
for an additional $1-per-day night differential in pay for
work starting at 12 noon.
Within a few days, Blake found a copy of the grievance
on her desk with a message from Platt to see him. When she
went in to his office Platt said, ‘‘[W]e had an agreement.’’
Blake replied that she was there for 8 hours, and had to do
what he told her to do and Platt agreed. The following day,
Platt called her into his office and told her he wanted her
to withdraw the grievance. Blake told him she didn’t file it
and she wouldn’t withdraw it, because he was wrong. Platt
responded he wasn’t wrong, that this isn’t a union office, and
he would do it again if the situation occurred again. She told
him if he changed her hours again, she would have to file
another grievance. At the time Blake was back working days
after having been assigned the 1 p.m. starting time the week
of the employee’s vacation.
D. Respondent’s Presentation in Opposition to the
Complaint Allegations
Respondent called only one witness to counter the allega-
tions of unfair labor practice. Thomas Platt testified that he
had been ABF branch manager at Avenel terminal from
April 1, 1996, until leaving the Company’s employ on Sep-
tember 13, 1996, a few weeks before testifying. Prior to
April 1, he had been branch manager of ABF’s north New
Jersey location.
When Avenel terminal closed effective September 25,
1995, some of the areas that were covered by that terminal
went to terminals other than Linden. The service area at ABF
in Linden was about half the size of the Carolina Freight
service area at Avenel. Even when the transfer was made
back to Avenel from Linden in April 1996, not all the work
previously done by Carolina Freight when it was at Avenel
ended up there. The ABF Avenel Terminal thus serviced a
smaller geographic area.
Platt was at Avenel in September 25, 1995, from 7:30 a.m.
for about 45 minutes and recalls seeing Fee, Knipe, and
Kulinich among other office clerical people. He was also in-
troduced to Dudik, although he had seen him previously at
grievance hearings.
On April 22, 1996, Bob Dudik called at 8:30 a.m. to tell
him he wanted to come down to see Robert Faust but did
not make an appointment to see him. Around 2 p.m he called
the terminal and learned from Deborah Fee that Dudik had
gone around with Faust to nonunion employees handing
them a letter with a union membership card. Fee told him
everyone in the office was upset and couldn’t concentrate on
their work. The employees perceived the letter which she
read to him as being intimidating and threatening their jobs
if they didn’t join the Union. When she told him Dudik
would be returning at 4 p.m. to see the nonunion clerks who
start them Platt said he would returning right away.
On his return to the terminal, Platt tried, but was unsuc-
cessful in reaching Steve Froias, so he called his boss, Re-
gional Vice President of Operations Phil Naw from the dis-
patch office and they got ABF’s corporate attorney at head-
quarters in Fort Smith, Arkansas on the line. As a result of
this consultation, Platt was to tell Dudik on his return that
the Company questioned the legality of the letters and would
like to review them before they were distributed to any em-
ployees. While Platt was still on the phone, Dudik entered
the driver’s room and Platt told Dudik not to hand out the
letters. Platt got off the phone, told Dudik what he and the
other ABF executives had decided and Dudik became very
belligerent, and began cursing in a loud voice. During this
argument, drivers were returning to the terminal at the end
of their shift. Platt told him he was not to hand out the let-
ters and asked him to leave. Dudik refused and said he was
not leaving until he handed out these letters.
Platt now told him if he didn’t leave, ‘‘we’re going to
have to call the cops.’’ When Dudik said, ‘‘Do what you
have to do,’’ Platt instructed Jim O’Donnell, operations su-
pervisor, to call the cops.
Dudik argued his right under the union contract to have
access to service bargaining unit employees, Platt pointed out
he had access as long as he didn’t disrupt and interfere with
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557ABF FREIGHT SYSTEM
operations. Before the police arrived Dudik went around the
corner to use the pay phone and Platt kept watch on him.
After the police arrived the officer called Dudik outside into
the vestibule, and then returned with the contract and re-
ferred to the provision on a union access. Platt countered that
he had access so long as he didn’t interfere with the oper-
ation, which was what was then happening, and he’d like
him to leave.
Some time elapsed while Dudik waited for his office to re-
turn a phone call. The police officer suggested he call his of-
fice and received approval from Platt for Dudik to use his
office phone. After making the phone call, when the police
officer asked him what he was going to do, Dudik asked
Platt if he would be allowed to hand out the petitions. When
Platt said no, Dudik said, ‘‘[Y]ou’ll have to arrest me, be-
cause I’m not leaving.’’ The officer then did so and asked
Platt to come to police headquarters in 20 minutes. Platt
went there, and swore out the complaint which was still
pending at close of hearing.
After Dudik was removed from the office, Platt denied
making any gestures of any kind indicating his happiness
with Dudik’s removal and arrest. But he was not asked and
consequently did not address whether he made any com-
ments about the arrest in front of employees.
Upon his return from police headquarters, Platt saw Dudik
in the yard standing near the ABF fuel tank with Dan De
Santi and an ABF driver. Platt rolled down his car window
and asked what he was doing here. Dudik responded with
cursing and an offer to Platt to get out of his car and ‘‘we’ll
fix you.’’ Platt left, parked, was going into the office when
he saw Brian Amicucci, an operations supervisor and another
police officer and learned that the supervisor had called the
police earlier when Dudik had returned, accompanied by De
Santi who had gone into the ABF offices and served the re-
maining union letters with union cards.
Platt now approached Dudik and De Santi accompanied by
the police officer and learned that the union agents claimed
to be servicing the bargaining unit at Roadway and had a
right to be there. He felt that they still should leave. When,
after some extended discussions, he was informed that they
were going inside and that they were going to behave, there
was nothing he could do. But when asked about the police
officer calling his lieutenant, Platt said even after the call he
felt that they should still leave. When the officer came to
him and explained, ‘‘you know they lease from you, and
they can’t tell someone you lease to what company they can
have and that sort of thing, and I agreed with him. I realized
that there wasn’t anything that I could do about that.’’ (Tr.
675.) Platt denied he ever said he wanted the union agents
rearrested. And on the very next day, and thereafter, he made
no attempt to interfere with Dudik in his visits to the Avenel
facility.
As to the change in Blake’s hours and the resulting griev-
ance Platt testified as follows. He had a billing clerk who
was going to be out 4 days. She started at 4 p.m. Since
Blake had some billing experience he sat down with her and
said that since she was the junior most person and no one
else wanted to work at night, he’d like her to do the billing.
She could even start at noon. Blake was perfectly agreeable.
When he told her it would be 4 days, she corrected him and
said their contract required all 5 days. He agreed.
After that week of Blake’s change in hours he received a
grievance by certified mail from Local 701, claiming he had
changed Blake’s starting time and seeking additional pay. He
believed there was some mistake. The Company had a non-
union office with union people in it and he had never taken
the contract to apply to office policies. He was also surprised
since Blake had never indicated any problem with her
change.
He then had a conversation with Blake in his office. He
told her, ‘‘your probably as surprised as I am to get this, be-
cause I see you didn’t sign it.’’ Blake said no, she agreed
with that. Platt responded, ‘‘[B]ut you agreed to do this. I
don’t understand.’’ Blake explained she couldn’t tell him
‘‘what’s wrong with it. I just have to go along with what you
say.’’ Platt countered, ‘‘[S]o this is your grievance. You
think this is right.’’ And she said, ‘‘Yes.’’ ‘‘And I said
‘Okay.’ And that was the end of that.’’ (Tr. 679.)
Platt denied he ever threatened anyone, including Blake,
with any kind of retaliation for engaging in any kind of
union activities. But Platt was not asked on direct examina-
tion, and as a consequence, did not deny a second conversa-
tion the following day during which Blake testified Platt tried
to get her to withdraw the grievance and told her this wasn’t
a union office and he would transfer her again if the situation
occurred again.
Under cross-examination, Platt agreed the type of work of
the ABF office clericals remained the same on the move first
to Linden and then back again to Avenel.
Platt did not agree Blake would have automatically been
insubordinate if she had refused the change in her hours, but
if she refused they would then have discussed her reasons
and probably come to a meeting of the minds. He had been
very surprised about her filing the grievance without talking
with him. He didn’t know at the time that it was a violation
of the Local 701 agreement to ask an employee directly to
change times when the agreement provided for designated
starting times for each employee and he was aware that just
a week before Blake had successfully bid on a day-shift
starting time when the starting times had been placed up for
bid for the office clericals.
Platt permitted Dudik to walk around the corner and use
a payphone outside the office at the Avenel Terminal on
April 22, even though Dudik was becoming increasingly
beligerent and was using foul language. Further, although
Platt claimed that when he returned to the Terminal after
swearing out a complaint against Dudik, Dudik again cursed
him, screamed vulgarities at him and even threatened to
physically assault him, at no time did he ask the police offi-
cers who arrived shortly afterward, to have Dudik arrested,
again.
Platt disclosed that he had been terminal manager at Lin-
den from April 1991, to September 24, 1995. During that pe-
riod he had used Deborah Fee to type his work and both Fee
and Chris Knipe had typed warning or suspension letters he
had issued to drivers during that period. Platt also conceded
the Local 701 clerical contract contained nothing in article
16, the relevant article, about requiring the same starting time
for 5 days. He just accepted Blake’s representation without
looking at the contract.
As to his discussion with Blake about the grievance, Platt
admitted whenever he received a grievance, mostly involving
the drivers, he always talked to the employee about it. Yet
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558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he never discussed the change in Blake’s hours with Dudik,
or informed him she had agreed to the change. He also may
have told Blake that if this happened again, he might have
asked her to switch her hours, and that they had office poli-
cies in this nonunion office. Platt asserted that in the past he
had explained to Dudik and the union employees in the of-
fice that they had a nonunion office, and the union contract
applies to them where it deals with them on an individual
basis.
Although Platt acknowledged that Dudik had visited the
terminal on other occasions, he could not recall receiving an-
other phone call like the one at 8:30 a.m. on April 22 when
Dudik asked if he could see Robin Faust. On April 22, some-
one else would have had to answer the phone first since it
doesn’t ring in his office. Later that day, Platt left the office
to visit a mortgage company in Princeton and was gone 2
to 4 hours. Although, he was 10 years in the trucking indus-
try and dealt with the Teamsters representing drivers the
words on Dudik’s letter to the nonunion employees did not
sound familiar. He had heard of a union-security clause be-
fore, he knew drivers had to join the Union, but the subject
of the letter was a new experience for him.
On his return to the facility on April 22, and as a result
of his phone call to management and corporate counsel, they
decided not to allow the intimidation factor to go on by the
handing out of the union letter until the legal department
could review it. The intimidation tactics to go by the handing
out of the union letter until the legal department could re-
view it. The intimidation tactics Platt described as the threat
of loss of employment for the nonunion clerks set forth in
the letter, in which Dudik described the enforcement of the
union-security clause.
Platt asserted he never lost his composure in his confront-
ing Dudik, but that he told Dudik to calm down because he
was ranting and raving and causing a commotion. Yet, Platt
had not so testified when asked to describe what happened
that day with Dudik on his direct examination.
When the police arrived, and both of them had an oppor-
tunity to explain their position to the police, Dudik was not
unruly and he allowed Dudik to use his office phone at the
request of the police officer. When the police left with Dudik
through the front entrance Platt recalled some employees
being present nearby in the office. Now, Platt who had ear-
lier refrained from testifying about comments to employees
immediately following Dudik’s arrest, testified he could not
recall entering the clerical area and speaking to any of the
clericals.
When asked by union counsel about his reaction to
Dudik’s and De Santi’s screaming and cursing at him and
making a threat of physical harm on their confrontation on
Dudik’s second visit to the terminal, Platt again denied ask-
ing the police to arrest them or telling them he had been
physically threatened. When pressed as to whether he ever
mentioned the physical threats, Platt changed his testimony
to now state he didn’t recall. Still later, after being asked if
he knew that one person couldn’t threaten another person,
that to do so was a violation of criminal law, Platt now
changed his testimony again to assert that he probably did
tell the police officer about it but he also claimed that he did
not know that the union agents’ threat was a violation of
law.
E. Credibility Resolutions
Wherever Platt’s and Dudik’s testimony is at variance I
credit Dudik’s version. Platt’s testimony struck me as not
being credible on the matters in which he and Dudik dif-
fered. In a number of instances one of which I have high-
lighted, Platt manifested an indecisiveness and suggestions
which undermined his credibility. Further, Platt, conveniently
was unable to recall certain facts regarding his absence from
the Avenel facility on April 22, such as the times of his de-
parture or return, the identity of the mortgage company he
visited, how long he remained at the Woodbridge Police Sta-
tion or whether he informed Dudik that the clericals were so
upset by the Union’s application letters that they allegedly
could not function. Yet he recalled the precise times of
Dudik’s call to the facility that morning and his later call to
the facility. When he spoke to Fee, although he later changed
this time from 2 to 3:15 p.m. Although Platt relied on
Dudik’s alleged disruptive behavior and interference with
ABF’s operations as justifying his removal from the facility
in discussions with the police, Dudik never heard Platt make
reference to this argument and Platt never insisted on Dudik
leaving the area or the vicinity of the employees while he
was insisting on his arrest by the police. In fact, Platt per-
mitted Dudik to use his office telephone. The fact that Platt
could point to no harassing behavior on the part of Dudik
when he distributed the letters and union cards and he
deemed the Avenel facility a nonunion operation with some
union members employed support the conclusion I reach that
Platt’s concern expressed to the police officers was with
Dudik’s approach to nonunion employees and not on disrup-
tion in business Dudik’s presence may have allegedly occa-
sioned. As to Dudik making an appointment to meet Platt at
2 p.m. on April 22, Dudik’s version not only appears to con-
form with his practice of only contacting the terminal man-
ager on visits to meet with him, aside from the shop steward,
but is supported by Faust’s testimony that she transferred
Dudik’s call to Platt and then on a transfer back to her line
was told by Dudik he had an appointment with Platt at 2
p.m. and would be in to see her.
I credit Dudik as to Platt’s agitated state when he con-
fronted Dudik on both of his visits. While their versions of
the substantive interchanges between them do not vary sub-
stantially, apart from the alleged cursing and threats attrib-
uted to Dudik, Platt is not credited in his denial that he
sought Dudik’s rearrest on his second visit to the terminal.
De Santis corroborated Dudik here and Platt ratified the call
to and presence of the police the second time and continued
to seek Dudik’s and De Santis’ removal from the site with
the backing of the police officer even after he learned the na-
ture of their visit was to transact union business at Roadway
Express.
Aside from crediting Dudik that he was unaware of any
ABF claim of nonunion office clericals in the bargaining unit
until February 23, 1996, when he received notice of ABF’s
position on Deborah Fee, I credit Faust and Blake that the
Avenel clericals were informed by Dan Smith, the Linden
terminal manager before the September 25, 1995 transfer,
that the Linden ABF office clericals would be placed else-
where after performing training assignments. As a result, the
continued appearance of Fee on an irregular basis for some
days after the move, as well as Pankiw for a limited period
at Linden was not a matter of concern for the shop stewards
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559ABF FREIGHT SYSTEM
or union business agent. In the absence of any notice from
ABF of continued rights to return to Linden, and given the
‘‘office’’ seniority list provided to Dudik in November, the
union could reasonably rely on the bargaining unit at Linden
comprising the seven union members, including the two on
layoff, aside from confidential employee Knipe and even
with Fee’s return in February, to replace Knipe. When Dudik
learned of ABF’s belated claim to include Fee, Knipe,
Pankiw, and Kulinich in a revised seniority roster in Feb-
ruary 1996, he immediately sought information about them
in his demand of March 4, 1996, and contested ABF’s posi-
tion at the Joint Area Committee hearing.
I also credit Blake’s testimony attributing an attempt by
Platt to obtain her withdrawal of the union grievance filed
on her behalf. At their second meeting in his office, the day
following Platt’s initial meeting with her on the grievance.
Platt failed to deny he held such a meeting and failed to
offer any testimony disputing Blake’s version of it. Further-
more, his admission of great surprise at receiving the griev-
ance, his practice of meeting personally with grievants, his
assertion that the office was nonunion and the union contract
only applied to the union members on an individual basis,
as well as his acknowledgment that he may have told Blake
that if the situation occurred again he would ask her to
switch her hours again and that there were office policies in
this [non]union office, all support the credibility resolutions
I have made.
I finally credit Blake attributing to Platt the comments she
said accompanied his wiping his hands in satisfaction after
Dudik’s arrest and being led away, testimony to which Platt
did not respond.
Analysis and Conclusions
The first issue I will consider is whether since April 18,
1996, by refusing to recognize the Union as the collective-
bargaining representative of the office clerical employees at
Avenel and by refusing to apply the 1994 to 1998 labor
agreement to all of these employees, ABF has violated Sec-
tion 8(a)(1) and (5) of the Act.
The counsel for the General Counsel argues that, initially,
an accretion to the bargaining unit of office clericals em-
ployed at Avenel and recognized by ABF as successor em-
ployer to Carolina Freight took place when ABF transferred
the five active and two laid-off Avenel employees to its Lin-
den facility effective September 25, 1995, where four non-
represented office clericals had been employed, and at least
two of them continued working, one off and on, for a period
of a week to 10 days, and a third continued working as a
stipulated nonunit confidential employee. Inasmuch as the
seven Local 701-represented employees constituted a major-
ity of the unit employees, Local 701 continued as exclusive
representative of the accreted unit.
The General Counsel then argues that when ABF closed
the Linden and East Brunswick terminals and transferred and
consolidated those operations, including the clerical work, at
its previously operated but discontinued Avenel Terminal ef-
fective April 1 and April 15, 1996, another accretion oc-
curred pursuant to which the 4 transferred East Brunswick
nonrepresented office clericals were now absorbed by accre-
tion into the previously represented 10 employee clerical unit
transferred from Linden. Thus, the Union represented a ma-
jority of the Avenel unit office clericals, and ABF, by refus-
ing to recognize Local 701 as the unit representative and re-
fusing and failing to apply the preexisting contract to all of
the employees, in its April 19, 1996 written answer to the
union’s April 18 grievance, has refused to bargain under the
Act.
I am persuaded by the existing case law and the principles
of law those decisions represent as applied to the facts of this
case that the government’s argument is sound and that ABF
has violated Section 8(a)(a)(1) and (5) as alleged.
As noted by the Board, several factors are considered by
it in determining whether in a transfer of operations, an ac-
cretion to a preexisting contractual unit has taken place so
that the combined employees constituted an enlargement of
the contractual unit requiring the employer to bargain collec-
tively with the representatives of the original contractual unit.
Those factors include whether there was any substantial
change in operations following the relocation or consolida-
tion. Another factor the Board relies on is whether the em-
ployees in the original contractual unit comprise a majority
of the newly combined work force. Another critical factor is
whether the asserted accreted employees were already rep-
resented by another labor organization. For Example, in Mas-
sachusetts Electric Co., 248 NLRB 155 (1980), the Board re-
fused to apply normal accretion principles where, after the
transfer, the function and classifications renamed essentially
unchanged, because the employees transferred to a facility
where the employees were covered by a collective-bargaining
agreement were themselves represented previously by dif-
ferent labor organizations. As the Board noted at 157, ‘‘In
these circumstances, statutory policies will not be effectuated
if, through the application of ordinary principles of accretion,
a bargaining agent is imposed on either unit of the newly in-
tegrated operated found appropriate.’’ [Footnote omitted.] A
final factor of note is whether the alleged accreted employers
share a substantial community of interest with the employees
employed in the contractual unit following the transfer or
consolidation. Application of these factors to the facts in
Central Soya Co., 281 NLRB 1308 (1986), led the Board to
find a valid accretion that perpetuated the employer’s obliga-
tion to bargain with the union which represented the employ-
ees in the preexisting contractual unit.
The facts in Central Soya Co. parallel those in the instant
proceeding. Just as in Central Soya Co., the Respondent pur-
chased a competitor, relocated and consolidated operations at
a facility, Linden, without making any substantial changes in
operations, the transferred employees in the contractual unit
constituted a majority of the combined work force after the
move, no other labor organization represented the employees
who already worked at Linden, and they shared a strong
community of interest with the previously represented em-
ployees.
There is no question that the same trucking operation that
existed at Avenel continued at Linden and that the office
clerical employees continued to perform the same functions
after the move. The fact that certain work at Avenel was
transferred to terminals other than Linden is insignificant in
determining that the Linden operation was a continuation of
the work performed at the Avenel facility. The seven trans-
ferred employees (including two laid-off employees retaining
contractual seniority rights to recall) constituted a majority of
this combined work force, for a significant period of time
comprising the sole work force, until February 1996, or later
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560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when Fee returned to Linden, and even as to Fee the Union
and stewards claimed with good reason that Fee was per-
forming confidential duties in place of Knipe who was on
maternity leave. Even including Fee, as well as Kulinch and
Pankiw, as laid-off employees with rights to return to Linden
as claimed by ABF, the union still comprised a substantial
majority in the office clerical unit. These three employees
were unrepresented by any labor organization. Finally, once
part of the office clerical work force, Albeit with groups of
them starting at different but overlapping starting times, it a
self evident they all shared a substantial community of inter-
est. They all were supervised by the same terminal manager,
retained related and easily transferrable work assignments,
worked in close proximity to each other in the same office,
shared the same office procedures, and dealt with each other
on a daily basis.
I thus find a valid accretion that continued the Union as
exclusive representative on and after the relocation to Lin-
den.
The same factors which govern the Board’s application of
the accretion principle apply with equal force to the next re-
location to, and consolidation of both the Linden and East
Brunswick office clerical operations at, Avenel in April
1996. The work remained basically the same, even if some
of the geographic areas previously covered at Avenel were
asigned elsewhere by ABF. The 10 Linden office clericals,
constituting a valid bargaining unit, now joined four office
clericals relocated from the East Brunswick Terminal, there-
by retaining their majority in a newly configured 14-person
clerical unit. Further, the four transfers from East Brunswick
were unrepresented and shared a strong community of inter-
est with the unit employees who tranferred from Linden,
even though 5 of them (Lupton, Hawlett, Pankiw, Apruzzi,
and Kulinich) were then on layoff. Thus, I conclude, the
Union now represented a combined 14-person unit of office
clericals employed at Avenel and ABF’s refusal to recognize
the Union or apply the contract to them constitutes a viola-
tion of its bargaining obligation under the Act.
The Union, in its brief, proposes an alternate basis for con-
cluding that Respondent’s withdrawal of recognition of Local
701 as the exclusive bargaining representative of the office
clerical employees at the Avenel facility in April 1996, vio-
lates Section 8(a)(1) and (5).
Under a line of cases, which I find applicable to the facts
on the instant proceeding, an existing contract will remain in
effect after a relocation, if the operations at the new facility
are substantially the same as those at the old facility, and if
transfers from the old facility constitute a substantial percent-
age, approximately 40 percent or more of the new facility’s
compliment. In Harte & Co., 278 NLRB 947 (1986), the
Board commented that it had developed standards in its con-
tract-bar and failure to bargain cases to determine when there
is sufficient continuity of operations to justify applying an
existing agreement to a new location. ‘‘These cases hold that
an existing contract will remain in effect after a relocation
if the operations at the new facility are substantially the same
as those at the old and if transferees from the old plant con-
stitute a substantial percentage—approximately 40 percent or
more—of the new plant employee compliment Westwood Im-
port Co., 251 NLRB 1217, 1214 (1960), enfd. 681 F.2d 664
(9th Cir. 1982); General Extrusion Co., 121 NLRB 1165,
1167–1168 (1958). See also Marine Optical, 255 NLRB
1241, 1245 (1981), enfd. 671 F.2d 11 (lst Cir. 1982).’’ Id.
at 948–949. In accord: Rock Bottom Stores, 312 NLRB 400
(1983).
In Harte & Co., the Board applied these standards in con-
cluding that the charging union’s contract at the old facility
continued to apply at the new. Besides finding that the two
operations were substantially the same and the employees at
the former location constituted more than 40 percent of the
new facility’s compliment, the Board also noted, inter alia,
that no other union had advanced any claim to represent the
employees at the new facility. ‘‘Thus Harte was not pre-
sented with rival claims from competing union, and its rec-
ognition of [the charging union] at [the new facility] did not
implicate the types of considerations we have addressed in
RCA Del Caribe, Inc., 262 NLRB 963 (1982), and Bruchner
Nursing Home, 262 NLRB 955 (1982). [Footnote omitted.]
Id. At 950. Both RCA Del Caribe, Inc., and Bruckner Nurs-
ing Home established new Board policy with respect to the
requirements of employer neutrality when an incumbent
union is challenged by an ‘‘outside’’ union, a conflict clearly
not present in either Harte & Co. or the instant proceeding.
Thus, applying the teachings of Harte & Co. to the instant
facts, since the seven former Linden employees clearly cov-
ered by the Local 701 collective-bargaining agreement were
joined at Avenel by seven nonrepresented employees as of
April 1 and 15, 1996, (Fee, Todaro, Petruzziello, Pankiw,
Kulinich, Soltis, and Dolby) the represented employees under
the agreement comprised 50 percent of the total complement,
and the Local 701 contract should apply to all of them.
Under this formulation, Fee’s limited employment at Linden
for approximately a month and a half before the relocation
to Avenel as of April 1, 1996, was as a confidential and both
Pankiw and Kulinich had never been employed on the Lin-
den unit, except for Pankiw as trainer form September 25
until October 3, 1995.
Respondent asserts a number of defenses to forestall the
legal conclusion that the Union is the valid exclusive rep-
resentative of the Avenel office clerical unit. First, Respond-
ent claims that the time limitations contained in Section
10(b) of the Act prevents General Counsel from asserting the
union’s current valid collective-bargaining status for the
Avenel unit. Since the alleged accretion as of September 25,
1995, took place more than 6 months before the Union filed
its initial charge on May 6, 1996, alleging a refusal to bar-
gain, the charge and thus the complaint allegation on which
it must be based is time barred. But the charge alleges April
23, 1996, as the date of violation, by which time Respondent
refused to provide the information the Union sought on April
18, 1996, about the seven employees ABF listed on its April
15 seniority roster, interfered with Dudik’s attempts to serv-
ice unit employees, and refused to recognize the Union and
honor its agreement.
The September 25, 1995 date is not a date alleged as one
on which a violation took place. It is the date that the Re-
spondent transferred the union-represented employees to a fa-
cility at Linden where they out numbered the existing non-
union complement. The accretion which followed as a matter
of law did not constitute an unfair labor practice but only an
event which, when combined with others well within the
10(b) period, must notably Respondent’s relocation and
transfer of Linden and East Brunswick Terminals to Avenel
and its rejection of the Union’s claim to apply its agreement
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561ABF FREIGHT SYSTEM
to all Avenel office clericals, the Union asserts as unfair
labor practices.
The Respondent answers that in failing to apply the union
contract to Pankiw and Kulinich after the change of oper-
ations, which it opposed, the union failed timely to assert Re-
spondent’s position as violative of its bargaining obligation
under the Act. However, because of their layoffs on or short-
ly after September 25 no instance arose after September 25,
1995, where Respondent failed to apply the contract to them
or where a contract term could have been applied to them,
other than their possible recall from layoff which never
arose. Since Fee was not recalled until February 1996, and
the Union ultimately sought unsuccessfully to obtain infor-
mation as to her status as well as those of Knipe, Pankiw,
and Kulinich whose names Respondent now included for the
first time, in February 1996 on its Linden seniority roster,
Respondent cannot claim that the Union failed to assert con-
tract rights as to them or failed to file a timely charge on
May 6, 1996. Before Fee’s inclusion on the revised February
1996 roster, the Union reasonably believed her to have been
a confidential employee. Furthermore, as Dudik explained,
laid-off employees had no obligation to maintain good stand-
ing in the Union until their recall and therefore the Union
had no reason to question Pankiw’s or Kulinich’s nonunion
status.
All during the period from September 25, 1995, to at least
February 23, 1996, when it received ABF’s revised seniority
roster, Dudik reasonably relied on the information he re-
ceived from his stewards and Respondent to conclude that
the seven prior Avenel clericals comprised the complete unit
complement of employees. The November 1995 office
senority rosters supplied by ABF, as well as the reports of
the reassignments of the prior Linden clericals following
their short interval of training the arriving Avenel clericals,
and, in particular, the failure of ABF to inform the stewards
or Dudik of any existing rights of those clericals to inclusion
in the Linden unit, strongly supported the Union’s belief in
a unit limited to the represented employees. It was not until
Respondent’s application to relocate back to Avenel that the
Uunion discovered Respondent’s intent to include the four
nonrepresented prior Linden work force in the office clerical
roster.
Respondent also argues that such cases as General Extru-
sion Co., cited supra; Kroger Co., 155 NLRB 546 (1965);
General Electric Co., 170 NLRB 1272 (1968); and Martin
Marietta Co., 270 NLRB 821 (1984), support its position
that no accretion occurred and the Union therefore only rep-
resented its members employed at Avenel. Each of these
cases is inapposite. Respondent’s reliance on the statement of
the standard in General Extrusion, in which language is used
to describe situations where a contract will not serve to bar
an election, if the new operation involves a change from its
preexisting nature or the merger of two or more operations
result in the creation of an entirely new operation with major
personnel changes, is not germaine to the facts present on the
record. Neither the Linden operation, nor the Avenel oper-
ation which followed it, changed the nature of the prior oper-
ation or resulted in the creation of an entirely new operation
with many new employees. Furthermore, General Extrusion
involved competing interest between two unions, as did the
Kroger Co., and Morton Marietta Co., and for that reason
alone, these decisions are distinguishable. Just as the Board
will not apply ordinary principles of accretion when each
prior operation which is combined has a separate bargaining
representative, see Massachusetts Electric Co., cited supra,
so too the Board will not normally permit a contract to be
asserted as bar when the new operation merges two sepa-
rately represented groups of employees. In such cir-
cumstances, a question concerning overall representation will
normally prevail. Furthermore, in each of these cases, includ-
ing General Electric, the Board found that new facility in-
volved a creation of an entirely new operation with manor
personnel changes, not present on the instant facts.
Respondent’s reliance on Boston Gas Co., 235 NLRB
1354 (1978), is particularly misplaced. While the Board in
Boston Gas Co., at 1354 refers to directing an election at a
new operation at the Lynn customer inquiry center its issues
before it involving the Madden operating center it held that
the employees transferred to Molden were performing
fiunctions similar to those performed in the past, although
using more advanced equipment, shared common facilities,
laws of supervision, and performed the same or similar du-
ties, and thus found the employees transferred were property
deemed an accretion to the existing unit of Malden employ-
ees, refused to question the majority status of the
predomenant Malden union, and dismissed the employer’s
RM petition. The facts and holding of the case therefore sup-
port the conclusions I have reached on the record before me
that Local 701 remains the exclusive collective-bargaining
representative of the combined Avenel office clericals and
Respondent violated the act by refusing to recognize Local
701 or apply the contract to them.
The short answer to Respondent’s further contention that
by acting in conformity with the decision of the Multi Re-
gion Change of Operations Committee convened under the
NMFA it was shielded from any claim of accretion or later
change of refusing to recognize the Union in the overall unit,
is that the Multi-Region Committee lacked jurisdiction to de-
termine unit placement of office clerical employees under
Local 701’s white paper agreement and could not preempt
the application of that agreement to ABF’s transfer of office
clericals from Avenel to Linden. Neither is Respondent
helped by arguing that the Union, by failing to appeal recog-
nized that decision when from all the facts available to the
Union ABF had agreed to apply the Local 701’s contract to
the Linden unit clericals.
Another issue arising under Section 8(a))(1) and (5), is
whether Respondent breached its bargaining duty by failing
to provide the Union, in response to its April 18 letter re-
quest, with the addresses and social security number of the
unit employees it had added to the seniority roster in its ap-
plication to the Joint Area Committee in February 1996 and
ithe names of whom it belatedly provided to the Union by
fax of April 15, 1996.
It is well settled that an employer is obligated to provide
requested information to a union ‘‘if there is a probability
that such data is relevant and will be of use to the union in
fulfilling its statutory duties and responsibilities as the em-
ployees’ exclusive bargaining representative.’’ Associated
General Contractors of California, 242 NLRB 891, 893
(1979), enfd. 633 F.2d 766 (9th Cir. 1980); The standard ap-
plied in determining the union’s right to information is ‘‘a
broad discovery type standard.’’ NLRB v. Acme Industrial
Co., 385 U.S. 432, 437 fn. 6 (1967). Information about terms
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562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Inasmuch as Respondent denied union access on one occasion
only and Dudik continued to have access thereafter, the General
Counsel is not alleging this conduct as violative of Sec. 8(a)(5) but
only violative of Sec. 8(a)(1) which is independently and deriva-
tively violated by conduct violative of Sec. 8(a)(5).
and conditions of employees actually represented by a union
is presumptively relevant and necessary and is required to be
produced. Ohio Power Co., 216 NLRB 987 (1975), enfd. 531
F.2d 1381 (6th Cir. 1976). Unit employees’ addresses and
social security numbers are likewise presumptively relevant
to a union’s performance of its duties as the unit’s collective-
bargaining representative. MBC Headwear, Inc., 315 NLRB
424 427 (1994); Honda of Hayward, 314 NLRB 443, 449
(1994); Radisson Plaza, 307 NLRB 94, 110 (1992).
Where the data requested relates to employees not rep-
resented by the union, there is no presumption that the infor-
mation is necessary and relevant to the union’s representation
of employers, and the union is under a burden to establish
its relevance, Ohio Power, cited supra; Duquesne Light Co.,
306 NLRB 1042, 1043 (1992). However, that burden is not
especially heavy. Id at 1043–1045, citing Leland Stanford
Junior University, 262 NLRB 136, 139 (1982), enfd. 715
F.2d 473 (9th Cir. 1983). And an employer’s obligation is
not excused by the union’s ability to access the information
independently. If the union has a sufficiently objective basis
for believing that bargaining unit work is being done by
nonunit employees, the burden is met. Duquesne Light Co.,
at 1044.
Here, ABF claimed the seven employees whose addresses
and social security numbers the Union sought, were part of
the office clerical seniority roster. Thus, it was including
them in the office clerical unit. By virtue of the Union’s
rights to represent the overall unit as I have concluded, it
was presumptively entitled to that information so that it
might seek to apply the union seniority provision of its
agreement to them and have a unique record of their identity
for purposes of record keeping. Even assuming that these
seven employees would not be deemed part of the overall
unit represented by the union it still had the right to seek this
information to investigate their statutes. Finally, although not
argued by the Union, it had the right, in conformity with the
Respondent’s April 19, 1996 grievance response, to seek to
obtain these seven employees’ voluntary membership in
Local 701 and thereby expand the agreement to cover them.
Thus, under any formulation, regardless of their unit or
nonunit status, the Union either had the presumptive right, or
has met its burden of establishing its right, to the information
it sought regarding the seven employees. Accordingly, Re-
spondent’s failure to respond to the Union’s request to sup-
ply the information violated its bargaining duty under the
Act.
I turn now to the allegations that in causing Dudik’s arrest
and in later attempting to eject and arrest him again Re-
spondent violated Section 8(a)(1) of the Act.
As noted earlier, the Union’s contract concerning the unit
employees at Avenel contains a provision, in article 26, sec-
tion 5, providing that ‘‘[a]uthorized representatives of the
union shall have access to the Employer’s establishment dur-
ing working hours for the purpose of adjusting disputes, in-
vestigating working conditions, collecting dues, and
ascertaining that the Agreement is being adhered to, provid-
ing there is no interruption of the Employer’s business.’’
As noted in American Commercial Lines, 291 NLRB
1066, 1072 (1988). ‘‘The Board has long held that a union’s
access to represent employees on an employer’s premises is
a mandatory subject of bargaining and that an employer’s
unilateral modification of contractual access provisions vio-
lates Section 8(a)(5) 3 of the Act.’’3 [Citations omitted.]
The access provision at issue is clearly broad enough to
encompass the Union’s purpose in visiting the facility to so-
licit memberships and dues from the newly transferred and
recalled from lay off clerical employees now working at
Avenel. Collection of dues is specifically mentioned in the
provision as is the Union’s right to seek adherence to the
terms of the agreement, without limitation, thereby encom-
passing the Union’s effort to obtain compliance with the
union-security provision by the seven previously unrepre-
sented employees. While the specific permitted purposes for
the Union’s visit spelled out in article 26, section 5, are nar-
rower than the more broadly phrased contract provisions at
issue in such cases as West Lawrence Care Center, 308
NLRB 1011, 1012 (1992), and Gilliam Candy Co., 281
NLRB 624 (1987), the Board’s approach has been to broadly
interprete such provisions that permit access as against em-
ployer attempts to unduly restrict them. This positive ap-
proach to affirming union access is exemplified most re-
cently in a decision, Frontier Hotel & Casino, 309 NLRB
761 (1992), enfd. NLRB v. Unbelievable, 71 F.3d (9th Cir.
1995), in which the access provision contained language very
similar to that contained in the Local 701 agreement by per-
mitting ‘‘visits . . . to see that this agreement is being en-
forced and to collect union dues, assessments and initiation
frees.’’ In addition, like the instant provision, this access pro-
visions prohibited or restricted access that interfered with the
conduct of the employer’s business or with the performance
of work by employees during working hours. Finally, just as
in the instant proceeding, the employer justified its ejection
of the union representative from its premises for allegedly
harassing nonunion employees and the employer similarly
was unable to support that claim by any probative evidence.
Both the Board and the Court in affirming the Board, held
that the ejection of the union’s representative interfered with
union related communication in violation of Section 8(a)(1).
As I have found, the Union was entitled to the information
it sought in writing from Respondent. When Respondent re-
jected the union’s request, the union, without other recourse,
was well within its rights under its access clause to seek to
obtain the same information and to seek to enforce its union-
security clause directly at Respondent’s facility. See
McDermott Marine Construction, 305 NLRB 617 (1991). I
have also found that in arranging for Dudik’s initial arrest
and ejection, in the presence of unit employees, Respond-
ent’s agent Platt was seeking to limit the union’s access to
the nonunion employees to prevent it from enforcing the
union-security provision and representing all unit employees
and was not legitimately relying on any harassment of the
employees. Such conduct is violative of Section 8(a)(1) of
the Act. Frontier Hotel, supra. The only claim Platt made
was that one employee, Fee, behaved, without foundation,
that the letter she received was a form of harassment, Platt
could point to no threatening conduct on Dudik’s part. Nor
could Platt show any interference with ABF’s business. The
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563ABF FREIGHT SYSTEM
government’s evidence was uniformly to the contrary. Thus,
Respondent’s defense, just as in Frontier Hotel, is flimsy and
insufficient to support or justify the union agent’s ejection or
arrest. Respondent’s arrest of Dudik and its ejection of him
was thus also a unilateral change in the scope of the access
provision in violation of Section 8(a)(1) of the Act.
Similarly, the attempt I have found Platt made later in the
same day to cause Dudik’s rearrest and ejection from its
Avenel Terminal was also unlawful. There is here even
greater reason to reject any justification Respondent could
offer to remove Dudik from the area since his purpose at the
time was to service employees in another bargaining unt em-
ployed by another employer, Roadway Express, Inc., and to
police the Union’s contract with that employer which leased
is facility at the same location from Respondent. See CDK
Contracting Co., 308 NLRB 1117 (1992).
In its brief, the Union urges that I conclude, in accordance
with case law it cites at page 54, particularly, Loehmann’s
Plaza, 305 NLRB 663 (1991), that Respondent has independ-
ently violated Section 8(a)(1) of the Act by continuing to
pursue a state court action—the criminal trespass complaint
still pending in Woodbridge Municipal Court at close of
hearing—that has been preempted by the issuance of the in-
stant consolidated complaint. While such a claim may other-
wise indeed have merit, I am compelled to reject this request.
The General Counsel has not alleged nor sought to amend
the complaint to allege the Respondent’s continued pursuit of
the criminal proceeding as a violation of the Act and it alone
determines the content and paramaters of the pleading it
issues. Furthermore, the matter, not having been previously
raised at trial, has not been litigated and due-process require-
ments also dictate that I make no finding and issue no legal
conclusion on this allegation. See, e.g., Albert Einstein Medi-
cal Center, 316 NLRB 1040 (1995).
However, the same constraints do not prevent in appro-
priate remedy from being includied in the order I shall rec-
ommend.
Finally, I rule now on the allegations that Respondent ex-
pressed a belief in the futility of supporting the Union and
threatened an employee with reprisals for not withdrawing a
grievance.
Under the Board’s well-settled test, interference, restraint,
and coercion under Section 8(a)(1) of the Act does not turn
on the employer’s motive or no whether the coercion was
successful or not. The Board looks to whether the employer
engaged in conduct, which, it may reasonably be said, tends
to interfere with the free exercise of employee rights under
the Act. American Freightways Co., 124 NLRB 146, 147
(1959).
When Platt walked through his office after Dudik’s arrest
and removal from the terminal, wiped his hands while com-
menting, ‘‘Well, I got rid of that one,’’ and then told Blake
she no longer had a leader, that he got rid of him, Blake
could reasonably conclude that the terminal manager’s com-
ments maligning the union representative and his ability to
continue to represent her and the other unit employees effec-
tively conveyed the message that it was futile to support or
remain a member of the Union, particularly in such a divided
and divisive work place. Particularly in the setting in which
their main agent had been forcibly removed from the termi-
nal because he was seeking to enforce the union-security pro-
vision and enlarge its membership to include all employees,
such comments would reasonably tend to chill union support
among the office clericals. I conclude that Platt’s comments
violated Section 8(a)(1). See Albert Einstein Medical Center,
cited supra.
By informing Blake, during the second meeting Platt held
with her in his office, after Blake refused to withdraw the
grievance claiming a contract breach arising from her change
in starting time, that this isn’t a union office and he would
transfer her again under a similar situation, Platt was, in ef-
fect, threatening an employees with a reprisal of a change in
hours to night shift for asserting rights under the labor agree-
ment to grieve an alleged breach. By tying his unlawful de-
mand that she withdraw the grievance with the adverse con-
sequences arising if she did not, Blake could reasonably in-
terpret Platt’s statements as an unlawful threat for exercising
the Section 7 protected right of filing a grievance. Industrial
Supply Co., 289 NLRB 639, 643 (1988).
By thereby bypassing Blake’s acknowledged bargaining
representative and dealing directly with her regarding the
grievance, Respondent, by its Manager Platt, has violated
Section 8(a)(5) of the Act. Gratiot Community Hospital, 312
NLRB 1075, 1079–80 (1993). In dealing directly with Blake,
it is clear that Platt was treating her as a unit employee, and
not as alternate steward, particularly since the union business
representative had filed the grievance and Blake was de-
scribed as the employee who had been denied her contract
rights by virtue of the breach.
CONCLUSIONS OF LAW
1. ABF Freight System, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local Union 701, International Brotherhood of Team-
sters, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All office clerical employees and building and property
maintenance employees employed by the Employer at
its Avenel, New Jersey facility, but excluding the fol-
lowing: Office Managers, Assistant Office Manager,
Personnel and Payroll Managers, Traffic Supervisors,
Terminal Service Manager, Dispatchers, Confidential
Secretaries to the Terminal Manager and Safety Super-
visor, General Supervisory Trainees and other salaried
supervisory administrative and professional employees
with the meaning of the Act and employees covered by
existing labor agreements.
4. Local Union 701, International Brotherhood of Team-
sters, AFL–CIO, is now, and at all times material herein has
been, the exclusive representative of all the employees in the
above described appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act
5. By making statements to employees indicating that it
would be futile to support the Union; causing the arrest of
the Union’s agent Robert Dudik; later the same day attempt-
ing to eject, and cause the rearrest of Union Agent Dudik;
and threatening an employee with reprisals if the employee
did not withdraw a grievance, the Respondent has interfered
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564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with, restrained, and coerced employees in the exercise of
their rights guaranteed in Section 7 of the Act and have en-
gaged in unfair labor practices in violation of Section 8(a)(1)
of the Act.
6. By withdrawing recognition from the Union as the col-
lective-bargaining representative of the above-described unit;
failing and refusing to continue in effect all of the terms and
conditions of the collective-bargaining agreement effective
from April 1, 1994, to March 31, 1998, between the Union
and the Respondent as succesor employer by failing to apply
them to all employees in the above-described unit; failing
and refusing to furnish the Union with the addresses and so-
cial security numbers of certain unit employees it requested
in writing on or about April 18, 1996; and by bypassing the
union and dealing directly with an employee in the unit by
attempting to resolve a grievance directly with that em-
ployee, the Respondent has engaged in unfair labor practices
and violation of Section 8(a)(1) and (5) of the Act.
7. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated Section 8(a)(1)
and (5) of the Act, I recommend that it be ordered to cease
and desist therefrom, and take certain affirmative action de-
signed to effectuate the policies of the Act.
I recommend that Respondent be ordered to recognize the
Union as the exclusive bargaining representative of the em-
ployees in the appropriate unit and apply its terms and condi-
tions, retroactively, to all unit employees and maintain in ef-
fect, the collective-bargaining agreement with the Union that
was legally in force at the Avenel, New Jersey facility since
April 1, 1996. I shall recommend that nothing in this order
is to be construed as permitting Respondent to deprive em-
ployees of any benefits they may have received as a result
of its refusal to apply the contract terms to all of the unit
employees at the Avenel facility.
I also recommend that Respondent be directed to supply
the Union with the names, addresses, and social security
numbers of all unit employees.
I further recommend that, as sought by the Union in its
brief, Respondent be ordered to withdraw, with prejudice, the
pending complaint in the Municipal Court of the Township
of Woodbridge (Docket No. S–1996–000572–1225). Since
the filing and pursuit of the criminal complaint by its termi-
nal manager is an extension and construction of the arrest of
Union Agent Dudik which I have concluded Respondent un-
lawfully caused, and is thus inextricably intertwined with the
illegal conduct alleged, I conclude that I may remedy the un-
lawful arrest, in part, by prohibiting Respondent from receiv-
ing any benefit from its illegal conduct that may result from
a conviction of Robert Dudik on the charge of defiant tres-
pass.
[Recommended Order omitted from publication.]
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