Cargo Logistics

National Labor Relations Board - Board Decisions

Sep 28, 1998

326 N.L.R.B. 1132 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
Cargo Logistics and Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union
No. 560, AFL–CIO. Case 22–CA–21933
September 28, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On July 14, 1998, Administrative Law Judge Raymond
P. Green issued the attached decision. The Respondent
filed exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cargo
Logistics, Newark, New Jersey, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
Substitute the following for paragraph 2(b).
“(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter notify the employee
in writing that this has been done and that the discharge
will not be used against him, in any way.”

Patrick E. Daly, Esq., for the General Counsel.
Frank K. Campisano, Esq., for the Respondent.
Howard A. Goldberger, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on June 3, 1998. The charge
and amended charge were filed on March 17 and August 1,
1997, and the complaint was issued on November 3, 1997.
In substance, the complaint alleged that the Respondent en-
gaged in a variety of 8(a)(1) conduct; that it discriminatorily
discharged William Thompson because of his union activities,
and that by its conduct it made a fair election impossible. Ac-
cordingly, the complaint, which alleged that a majority of the
employees in an appropriate unit had selected the Union to be
their representative, alleged that the Respondent, in violation of
Section 8(a)(5), refused to recognize and bargain with the Un-
ion.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
Certain inadvertent errors in the judge’s decision have been noted
and corrected.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, which is engaged in the moving and stor-
age industry, admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE STIPULATION
The parties entered into a stipulation of facts regarding most
of the allegations of the complaint. Accordingly, I make the
following findings of facts and conclusions of law in confor-
mity with the stipulation.
1. The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All drivers employed by Respondent at its New-
ark, New Jersey facility, excluding all office cleri-
cal employees, managerial employees, profes-
sional employees, warehouse employees, guards
and supervisors as defined in the Act.

2. The Union, Local 560, alleging that a majority of the em-
ployees in the above defined unit, filed a petition for an election
in Case 22–RC–11361. On March 5, 1997, the Union re-
quested the Respondent to bargain with it on behalf of the de-
scribed unit of employees regarding wages, hours, and other
terms and conditions of employment. The request was denied
by the Respondent.
3. On February 27, 1997, and on various other unknown
dates between February 27 and March 7, 1997, the Respondent
by its owner, supervisor, and agent, Joe Cioffi, in violation of
Section 8(a)(1) of the Act, interrogated its employees regarding
their union membership, activities, and sympathies and the
union activities and sympathies of other employees.
4. On or about February 27, 1997, and on various other un-
known dates between February 27 and March 7, 1997, the Re-
spondent by Cioffi, in violation of Section 8(a)(1) of the Act,
threatened its employees with (a) shutting down its business;
(b) operating its business under a different name and replacing
the unit with owner-operators; and (c) termination of employ-
ees if they chose the Union as their collective-bargaining repre-
sentative.
5. On or about February 27, 1997, and on various other un-
known dates between February 27 and March 7, 1997, the Re-
spondent by Cioffi, in violation of Section 8(a)(1) of the Act,
promised its employees benefits if they rejected the Union as
their bargaining representative.
6. In or about the week of March 3, 1997, the Respondent by
Cioffi, violated Section 8(a)(1) of the Act by soliciting employ-
ees’ complaints and promised its employees increased benefits
and improved terms and conditions of employment if they re-
frained from union organizing activity.
7. On or about March 7, 1997, the Respondent, in violation
of Section 8(a)(1) of the Act, initiated a petition for the purpose
of soliciting unit employees to repudiate their support for and
326 NLRB No. 114
CARGO LOGISTICS 1133
assistance to the Union, and to revoke any and all authorization
cards they may have signed designating the Union as their rep-
resentative for the purposes of collective bargaining.
8. In or about the week of March 3, 1997, the Respondent by
Cioffi, in violation of the Act, granted benefits to employees in
order to discourage them from joining, supporting, or assisting
the Union.
9. Subject to a check of the authorization cards by the New
Jersey State Board of Mediation to confirm that a majority of
the unit employees employed by Respondent during the week
ending February 28, 1997, selected Local 560 to be their bar-
gaining representative, the Respondent agrees to recognize
Local 560 as the exclusive bargaining representative of the
employees and further agrees that on request of Local 560, it
will bargain in good faith with it regarding the wages, hours,
and other terms and conditions of employment of the employ-
ees. The card check will be used to utilize W-2 forms or other
documents signed by unit employees and that are satisfactory to
counsel for the General Counsel and Local 560.1
Despite the stipulation noted above, pursuant to which the
Respondent admitted most of the complaint’s allegations, the
parties could not resolve the allegation regarding the discharge
of Thompson which occurred on April 15, 1997. Accordingly,
that matter was reserved for a hearing and on June 3, 1998, I
heard additional evidence presented by both sides.
III. THE DISCHARGE OF WILLIAM THOMPSON
William Thompson began his employment with the Respon-
dent as a truckdriver in April 1996. It was acknowledged by
Terminal Manager Karl Hightower Sr. that he was a good em-
ployee. During Thompson’s employment, he never received
any warnings except for an oral admonition regarding an al-
leged speeding incident which he denied. Although the record
shows that other employees have received written warnings
during the course of their employment, Thompson never re-
ceived a written warning of any kind.
The Union approached employees in late February 1997 and
Thompson was one of the people who signed a union authoriza-
tion card. Subsequently, he had several conversations with the
Respondent’s owner, Joe Cioffi, in which Cioffi tried to con-
vince Thompson to withdraw his support for the Union. Based
on the evidence in this case, there is no doubt that on several
occasions in late February and March 1997, Thompson made it
plain to Cioffi that he strongly supported the Union. Also, the
credited testimony indicates that Thompson was somewhat of
an irritant to Cioffi in that Thompson expressed his skepticism
regarding promises made to him by Cioffi.
As the evidence and the admissions show that the Respon-
dent was aware of Thompson’s sympathies for the Union and
was engaged in antiunion conduct, the General Counsel, pursu-
ant to Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), has met his
burden of showing, prima facie, that the Respondent was moti-
vated by antiunion considerations in discharging Thompson.
In his opening statement, Respondent’s counsel asserted that
the reasons that the Respondent discharged Thompson were (a)
because he was stealing time and (b) because Cioffi caught
Thompson speeding on the New Jersey turnpike.

1 At the time of the hearing in this case, the card check had already
taken place and the Company had recognized the Union and com-
menced bargaining.
Terminal Manager Karl Hightower Sr. asserted, however,
that Thompson was discharged because of three incidents. He
claimed that the first incident occurred at some indeterminate
time when some goods that Thompson was delivering to Power
Flex fell off his truck and were damaged when he backed up
and ran over them. Hightower did not, however, have any per-
sonal knowledge of the incident and the proof regarding its
occurrence was vague at best. No warning was issued to
Thompson in relation to this incident, whenever it occurred.
The second incident cited by Hightower involved a delivery
to a store called Dress Barn on March 21, 1997. The Respon-
dent contends that Thompson was late in making the delivery,
left the truck unattended, and delayed his return to the terminal
in order to avoid work.
In this instance, Thompson was the driver and Hightower’s
son was the helper. They left the Company at some time be-
tween 6:30 and 7 a.m. Their destination was a store in a shop-
ping center in Lakewood, New Jersey, which, in traffic, would
take about 2 hours to reach. On the way they got lost and
Thompson called in to get directions. This caused the truck to
be a little late and on arrival, somewhere between 9:15 and 9:30
a.m., the customer had a group of people ready to unload the
trailer. (The trailers’ contents were consigned only to Dress
Barn.) As Thompson and Hightower Jr. were not needed or
wanted to unload the trailer, they had coffee and hung around
the shopping center until the unloading was finished. Accord-
ing to Karl Hightower Jr., this took about 4 hours to accom-
plish. When the delivery was finished, Thompson and High-
tower Jr. started their drive back to the terminal. They arrived
in Newark at around the normal quitting time and there is no
evidence that they dawdled on their way home.
Neither William Thompson nor Karl Hightower Jr. received
any kind of warning or reprimand in relation to the Dress Barn
delivery.
The final incident cited by the Company involves a situation,
allegedly occurring on April 2, 1997, where Cioffi claimed that
he encountered Thompson speeding on the New Jersey Turn-
pike, between exits 12 and 13. (The speed limit there is now 65
miles per hour, and it is not uncommon to see vehicles, includ-
ing trucks, going at least 5 miles an hour above the limit.)
Cioffi did not testify about this incident although his friend,
Richard Holck did. In this regard, Holck testified that while he
and Cioffi were driving between exits 12 and 13, they encoun-
tered a truck which passed them and which was speeding. He
testified that Cioffi said that this was one of his trucks and
wrote down the truck’s number. Although, Holck asserted that
the driver was speeding and swerving on the road, he could not
say how fast the truck was going as he could not see the speed-
ometer on the car that Cioffi was driving. In his opinion, the
truck may have been going about 70 miles per hour.
Thompson testified that on returning to the terminal High-
tower Sr. told him that Cioffi had seen him speeding on the
New Jersey Turnpike. According to Thompson, he tries to keep
within the legal speed limits and states that he told Hightower
Sr. that he was not speeding. Thompson was not given any kind
of written warning regarding this incident and he denied that he
was speeding. It is noted that this incident occurred about 2
weeks before Thompson was discharged and the reason he was
given for his discharge was that work was slow.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
In my opinion, the Respondent has not overcome its burden
of showing that it would have discharged Thompson for legiti-
mate reasons in the absence of his union activity. The evidence
presented by the Respondent is, in my opinion, flimsy in the
extreme. In the case of the shipments to Power Flex and Dress
Barn, the evidence does not tend to show that Thompson did
anything wrong. And in the case of his alleged speeding,
Thompson credibly denied that he was speeding. The evidence
establishes company knowledge of union activities and anti-
union animus. Added to that is the evidence that Thompson, on
several occasions, expressed his prounion position to Cioffi,
while expressing skepticism about Cioffi’s promises which
were made to induce him and other employees to refrain from
supporting the Union. Based on the above, it is my conclusion
that the Respondent violated Section 8(a)(1) and (3) of the Act
when it discharged Thompson.
I also conclude that the above-unfair labor practices affect
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
As the Respondent, prior to the trial of this case and in ac-
cordance with the above-noted stipulation, has already recog-
nized and commenced bargaining with the Union as the repre-
sentative of the employees in the unit described above, I shall
not recommend that a bargaining order be issued at this time.
This is, however, conditioned on the Respondent’s continued
willingness to bargain in good faith for a reasonable period of
time. Royal Coach Lines, 282 NLRB 1037, 1038 (1987);
Rockwell International Corp., 220 NLRB 1262 (1975); and
Fertilizer Co. of Texas, 254 NLRB 1382, 1385 (1981).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 2
ORDER
The Respondent, Cargo Logistics, Newark, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or threatening to discharge employees be-
cause they choose to be represented by Teamster, Chauffeurs
and Warehousemen of America, Local 560, AFL–CIO.
(b) Threatening to shut down its business and operate under
a different name if employees choose the Union as their repre-
sentative.

2
If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Threatening to replace its employees with owner-
operators if they choose to be represented by the Union.
(d) Interrogating employees about their membership in or
support for the Union.
(e) Soliciting grievances and promising benefits in order to
induce employees to refrain from joining or supporting the
Union.
(f) Soliciting employees to sign a petition withdrawing their
support for or membership in the Union.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Wil-
liam Thompson, full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or privi-
leges previously enjoyed and make him whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against him in the manner set forth in the remedy section
of the decision.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and notify the
employee in writing that this has been done and that the dis-
charge will not be used against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its
facility in, Newark, New Jersey, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt 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 notices
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 in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since February 27, 1997.
(e) 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.

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CARGO LOGISTICS 1135
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 ordered 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 protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge or otherwise discriminate against
any of you for joining or supporting the Teamster, Chauffeurs
and Warehouseman of America, Local 560, AFL–CIO.
WE WILL NOT threaten to shut down our business and operate
under a different name if employees choose the Union as their
representative.
WE WILL NOT threaten to replace our employees with owner-
operators if they choose to be represented by the Union.
WE WILL NOT interrogate employees about their membership
in or support for the Union.
WE WILL NOT solicit grievances and promise benefits to our
employees in order to induce them to refrain from joining or
supporting the Union.
WE WILL NOT solicit our employees to sign a petition with-
drawing their support for or membership in the Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer William Thompson full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed and make him whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against him.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful discharge
of William Thompson and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that any such
references will not be used against him in any way.

CARGO LOGISTICS