Con-Way Transportation Services

National Labor Relations Board - Board Decisions

Apr 20, 2001

333 N.L.R.B. 1073 (N.L.R.B. 2001)

CON-WAY CENTRAL EXPRESS 1073
Con-Way Central Express, a Division of Con-Way
Transportation Services, Inc. and Teamsters Lo-
cal Union No. 41, affiliated with International
Brotherhood of Teamsters, AFL–CIO. Case 17–
CA–18478
April 20, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On November 12, 1998, Administrative Law Judge
Steven M. Charno issued the attached decision, append-
ing his bench decision delivered on October 30, 1998.
The General Counsel and the Charging Party filed excep-
tions and supporting briefs. The Respondent filed cross-
exceptions, a supporting brief, and reply briefs to the
General Counsel and Charging Party’s exceptions.
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 decided to
affirm the judge’s rulings, findings,1 and conclusions,
except as discussed below, and to adopt the recom-
mended Order as modified and set forth in full below.2
The General Counsel has excepted, inter alia, to the
judge’s finding that the Respondent’s general manager,
Jeff Vukovich, did not unlawfully interrogate employee
Jim Affolter regarding his union activities. We find
merit in the exception.
On March 11, 1996, Affolter posted an announcement
about a union meeting on a company bulletin board.
Vukovich, after being informed of the notice by another
employee, removed it from the board. Vukovich then
approached Affolter and asked who had posted the no-
tice. When Affolter responded that he had done so,
Vukovich stated that the board was only for company
notices. Although the Respondent maintained a written
rule restricting the use of its bulletin boards to authorized
company-originated notices, Vukovich testified that, on
at least one other occasion, he had seen a notice concern-
ing the sale of personal items by an employee posted on
one of the boards. Vukovich admitted that he should
have removed the personal notice because it was posted
in violation of the company’s restrictions on the use of
bulletin boards, but he had not done so. The judge
found, and we agree, that the Respondent violated Sec-
tion 8(a)(1) of the Act by disparately enforcing its policy
concerning the use of company bulletin boards.3 The
judge nonetheless dismissed the allegation that
Vukovich’s questioning of Affolter constituted unlawful
interrogation, finding no evidence that the questioning
was coercive or that Affolter was intimidated.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
as modified in Excel Container, Inc., 325 NLRB 17 (1997).
Preliminarily, the absence of specific evidence that Af-
folter was personally intimidated by the questioning does
not preclude the finding of a violation. In determining
whether such conduct violates Section 8(a)(1) of the Act,
the Board does not consider the subjective reaction of the
individual involved but rather whether, under all the cir-
cumstances, the conduct reasonably tends to restrain,
coerce, or interfere with employees’ rights guaranteed
under the Act. Sunnyside Home Care Project, 308
NLRB 346 fn. 1 (1992); El Rancho Market, 235 NLRB
468, 471 (1978). Applying this test, we find that
Vukovich’s questioning of Affolter would tend to have a
coercive effect. Unlike the judge, we find the interroga-
tion to be inseparable from Vukovich’s unlawful dispa-
rate enforcement of the company bulletin board policy.
Accordingly, when Vukovich asked Affolter who had
posted the union notice, he was asking Affolter to reveal
his participation in protected union activity that
Vukovich obviously and unlawfully sought to curtail.
Moreover, Vukovich did not give any assurances against
reprisal. Under these circumstances, we find that
Vukovich’s questioning of Affolter constituted unlawful
interrogation in violation of Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Con-Way Central Express, a division of
3 Contrary to the dissent, we would not reverse the judge’s finding in
this regard. Although the Respondent has an undisputedly valid written
policy restricting use of the bulletin boards to official company notices,
there is little evidence concerning the enforcement of this policy. Vuk-
ovich only testified specifically about two recent incidents. On one
occasion he removed a noncompany union notice, and on another occa-
sion he allowed a noncompany personal notice to remain posted. Vuk-
ovich said that he had removed other notices in the past, but he could
not recall any more specific examples. Thus, this is not a case where
the evidence of disparate treatment is insignificant or anomalous in
light of preponderant evident consistent with past practice. Instead,
there is an apparent inconsistency in enforcement of the bulletin board
policy that would reasonably tend to lead employees to believe that
there might be exceptions for nonunion personal notices but there
would be exceptions for union notices. Accordingly, the judge cor-
rectly found that the Respondent interfered with employees’ Sec. 7
rights and thereby violated Sec. 8(a)(1).
333 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1074
Con-Way Transportation Services, Inc., Kansas City,
Missouri, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Disparately applying its policy concerning the use
of bulletin boards to prohibit union-related postings
while permitting nonunion related postings.
(b) Coercively interrogating employees concerning
their union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing 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) Within 14 days after service by the Region, post at
its facility in Kansas City, Missouri, copies of the at-
tached notice marked “Appendix.” Copies of the notice,
on forms provided by the Regional Director for Region
17, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since March 11,
1996.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER HURTGEN, dissenting in part.
I do not agree that the Respondent violated the Act by
its removal, from its bulletin board, of a notice of a union
meeting. Respondent has a written rule restricting the
use of its bulletin board to authorized company-
originated notices. There is no allegation that the rule is
unlawful. Instead, my colleagues rely solely on allegedly
disparate treatment. However, they can point to only one
instance where a notice was tolerated in violation of the
rule. The notice was an employee notice of a sale of
personal items. Respondent’s general manager
Vukovich, concedes that he should not have permitted
that posting.
As indicated, I would not find the violation. Even as-
suming arguendo that the notice of sale and the notice of
a union meeting are comparable, I would not conclude
that a single instance of nonenforcement means that Re-
spondent has effectively, and everlastingly, lost control
of its own bulletin boards. Thus, I would permit Re-
spondent to continue to enforce its lawful rule.1
Further, I do not agree that the interrogation was
unlawful. Vukovich approached Affolter (an ardent and
open union advocate) and asked him who had posted the
notice. My colleagues find the violation because it is
“inseparable” from the bulletin board violation that they
find. As noted above, I do not agree that there is a bulle-
tin board violation. Thus, I do not agree that there is no
interrogation violation.
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 vio-
lated 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
concerted activities.

WE WILL NOT disparately apply our policy concern-
ing the use of company bulletin boards to prohibit union-
related postings while permitting nonunion related post-
ings.
WE WILL NOT coercively interrogate employees con-
cerning their union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
CON-WAY CENTRAL EXPRESS

Richard C. Auslander, Esq., for the General Counsel.
Frank B. Shuster and James F. Smith, Esqs. (Constangy,
Brooks & Smith) of Atlanta, Georgia, for the Respondent.
Dennis Speak and Vic Terranella, of Kansas City, Missouri, for
the Charging Party.

1 Contract to the pronouncement of the majority, the Act does not
condemn “inconsistency”; it condemns discriminatory treatment along
Sec. 7 lines. The issue here is whether the General Counsel has proven
such discrimination by pointing to one instance of disparity. I conclude
that he has not.
CON-WAY CENTRAL EXPRESS 1075
DECISION AND CERTIFICATION
STEVEN M. CHARNO, Administrative Law Judge. This
case was tried before me in Overland Park, Kansas, on October
27–30, 1998. After oral argument, I issued a bench decision
pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations. Appendix A is the portion of the transcript con-
taining my decision, while Appendix B contains corrections to
that transcript (omitted from publication). In accordance with
Section 102.45 of the Board’s Rules and Regulations, I certify
the accuracy of the amended transcript containing my decision.
[Recommended Order omitted from publication.]
APPENDIX A
576
JUDGE CHARNO. This is a Bench Decision in the case of
Con-Way Express, Case 17–CA–18478.
Except as indicated, the following findings are based upon
uncontested evidence.
It is admitted and I find that Con-Way Central Express, a di-
vision of Con-Way Transportation Services, Inc., hereinafter
Respondent, has at all times material been an employer en-
gaged in commerce within the meaning of the Act.
Teamsters Local Union No. 41, affiliated with the Interna-
tional Brotherhood of Teamsters, AFL–CIO, hereinafter the
union, is admitted to be and I find is a labor organization within
the meaning of the Act.
Respondent is engaged in surface transportation of freight
and has a facility in Kansas City, Missouri. Since Respon-
dent’s origin in 1983, it has successfully followed a business
plan which requires it to fill a high service, high cost niche in
the transportation of less than truckload, hereinafter LTL, ship-
ments of freight.
In order to differentiate itself from other LTL carriers, Re-
spondent has consistently striven to construct and maintain a
public image of itself as a reliable distribution system using a
modern, well-maintained fleet and facility network which are
577
operated by uniformed, experienced, professional driver/sales-
persons. This image has been and is central to Respondent’s
marketing effort and the existence of professional, uniformed
drivers is of importance to Respondent’s customers.
Reviewing Respondent’s sales and training materials, it
would not be unreasonable to conclude that Respondent would
like to secure a position with respect to LTL traffic comparable
to that enjoyed by United Parcel Service with respect to parcel
shipments. Indeed, there is some indication that Respondent’s
business plan is modeled on that of United Parcel Service.
In order to maintain the aspect of its image based on its driv-
ers, Respondent has, since it’s inception in 1983, had in effect a
“uniforms and appearance” policy which provides that “all
employees will present a neat, clean, well-groomed business
appearance while on duty.”
That policy further requires that, first, all driver/sales repre-
sentatives, hereinafter DSRs, who have completed their 90 day
probationary period must wear a company uniform during
working hours. Second, the uniforms are supplied and cleaned
by Respondent without cost to the DSRs. And, third, “marks,
patches, pins, buttons, logos, advertisements, or other adorn-
ments” not issued by Respondent may not be worn on duty.
During a special training course attended by all DSRs,
578
they are immersed in Respondent’s marketing philosophy and
are repeatedly exposed to the fact that Respondent uses the
public image of its uniformed professional drivers as one
method of distinguishing its service from that of its competi-
tors.
The requirements of Respondent’s uniform and attendance
policy are reiterated during that training and the DSRs are
given instructions on how to sell Respondent’s service while
making pick ups or deliveries.
During 1996, Respondent spent approximately $600,000.00
on DSR training courses and approximately 1.5 million dollars
on the cost, maintenance, and cleaning of DSR uniforms.
On February 19th, 1996, DSRs Jim Affolter and Howard
Ballinger arrived for work wearing non-issue hats and union
buttons. The buttons in question were highly conspicuous, flat,
two and a quarter inches in diameter, one of four “day-glow”
colors, and carried five renditions in black capital letters of the
words “Vote Teamsters.”
By his own admission, Bob Key, an admitted supervisor,
saw Affolter on the dock and asked with reference to the union
buttons, “What’s this about? The split shift?” Affolter an-
swered in the negative.
It is uncontested that, one, Key was a low level supervisor
without the power to discipline; two, Key’s job
579
required him to act as a liaison between the DSRs and Respon-
dent’s management; and, three, Affolter had complained to Key
about two weeks before about February 19th, concerning the
former’s split shift assignment.
Based on the standard articulated in Rossmore House, 269
NLRB 1176 (1984), affirmed sub nom. Hotel and Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Circuit
1985), I find that Key’s question did not constitute an interroga-
tion violative of Section 8(a)(1) of the Act.
Affolter and Ballinger were taken into the office of Respon-
dent’s Kansas City regional service center manager, Jeff
Vukovich, who asked if the DSRs understood Respondent’s
uniform and appearance policy, to which they responded in the
affirmative. Vukovich then asked them to remove the non-
issue paraphernalia and, after they refused, suspended both of
them.
During the remainder of the day five additional DSRs, spe-
cifically, Gale Sandow, Jim Miller, Al Palmer, Gary Tabb, and
Ronald Richardson, arrived for work at the Kansas City re-
gional service center wearing union buttons. They were taken
to Vukovich’s office where he asked if each understood Re-
spondent’s uniform and appearance policy. After each replied
that he did, Vukovich asked him to remove the button. When
each DSR refused, he was suspended.
580
On February 21, each DSR acknowledged violation of Re-
spondent’s uniform and appearance policy and agreed to abide
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
by that policy in the future. As a result, all seven DSRs were
brought back to work on February 22.
Before concluding my findings concerning the events of
February 19th, I should resolve the issue raised by Robertson’s
testimony that, during Richardson’s suspension interview,
Vukovich stated in the presence of Key that, if Robertson “went
up to join those men, he would never fucking work here again.”
Vukovich denied the statement, as did Key. The latter’s tes-
timony had a spontaneous, unrehearsed flavor and he was not
employed by or otherwise related to Respondent at the time of
his testimony.
For the foregoing reasons, and, one, based on the inherent
improbability of this statement attributed to Vukovich, and,
two, based on my observation of the demeanor of the witnesses
as they testified, I credit Key over Richardson and find that
Vukovich did not make the statement attributed to him.
The amended complaint alleges that Respondent’s admitted
February 19th, 1996 enforcement of its uniform and appearance
policy violated Section 8(a)(1) of the Act while the resulting
suspension of seven DSRs violated Section 8(a)(3) of the Act.
581
It is well established that employees have a presumptive
right to wear union paraphernalia on the job, unless an em-
ployer can show special circumstances which would justify
prohibition of such a practice. Republic Aviation Corp., NLRB
324 U. S. 793.
The Board has held that such special circumstances may be
present if an employer shows that union insignia “may reasona-
bly interfere with the public image which the employer has
established as part of its business plan through appearance rules
for its employees.” e.g. United Parcel Service, 312 NLRB 596,
597 (1993), enforcement denied 41 F.3d, 1608, (6th Cir. 1994).
Based on the facts set out earlier, I find the Respondent has
demonstrated the existence of just such a public image. Re-
spondent’s policy has been shown to apply only to DSRs who
are in contact with Respondent’s customers, either potential or
present. This finding is based on uncontroverted evidence that,
first, Respondent’s DSRs are trained to and do combine driv-
ing, pick up, and delivery duties with attempts to market Re-
spondent’s service to a variety of individuals who have author-
ity to authorize the use of that service, including company
presidents, traffic managers, department heads, and shipping
and receiving clerks. And, two, actual and potential
582
customers regularly visit all parts of Respondent’s Kansas City
service center, with the exception of restrooms, in order to tour
the facility or to pick up or deliver shipments.
Respondent has for many years consistently and non-
discriminatorily enforced its uniform and appearance policy.
There is not a scintilla of credible evidence in the record that
Respondent ever allowed any DSR to wear any non-issue
“mark, patch, pin, button, logo, advertisement, or other adorn-
ment” on his or her uniform.
The uncontroverted testimony of Respondent’s vice presi-
dent of operations established that Respondent has rejected
requests that DSRs be allowed to wear MIA/POW buttons,
American flag patches, and safe driving awards on their uni-
forms.
Finally, the supervisors and some of the employees at the
Kansas City regional service center testified credibly that the
uniform and appearance policy was consistently enforced.
The foregoing findings are based on several credibility reso-
lutions. The first involves mechanic Jerry Krogman’s wearing
of a Green Bay Packer hat. Richardson testified that Krogman
wore such a hat, but conceded whether he was unsure whether
Krogman was on the clock while wearing the hat. Affolter
testified to seeing Krogman wear the hat while Krogman denied
ever having worn the hat while on duty. The testimony
583
given by Richardson and Krogman is not necessarily inconsis-
tent, while the testimony given by Affolter and Krogman may
be argued to be in conflict. To the extent it is, I find Krogman
to be a straightforward witness whose account on cross and
direct examination was plausible and consistent. I found Af-
folter to be repeatedly disingenuous; he volunteered informa-
tion adverse to Respondent’s interests and he gave testimony in
conflict with the admissions of a fellow DSR who testified for
General Counsel.
For the foregoing reasons and based on my observation of
the two witnesses while on the stand, I find Affolter’s testi-
mony to be generally unreliable and credit Krogman’s account.
The second situation involves Affolter’s testimony that he
once saw DSR Jim Hunt wear a Kansas City Chiefs sweatshirt.
Assuming, arguendo, that Affolter may be believed on this
point, there is no evidence that’s Hunt’s dress was observed by
Respondent’s management and, therefore, no basis to make a
finding concerning disparate enforcement of the policy exists in
the record.
The third situation involves Affolter’s testimony that
Vukovich wore a Green Bay Packers cap during the winter of
1995, an allegation convincingly and cogently denied by
Vukovich, who
584
gave a believable account of the manner in which he acquired
his only Green Bay Packer hat some months after the time Af-
folter claimed to have seen it being worn.
For the reasons given previously and based on their respec-
tive demeanors, I credit Vukovich over Affolter.
The only probative evidence of anyone wearing a non-issue
insignia involved a supervisor who is not required by Respon-
dent’s policy to wear a company uniform. Supervisor Joe
Miller candidly admitted that he had worn a Kansas City Chiefs
sweatshirt to a football luncheon celebration at Respondent’s
facility, which celebration was approved and sanctioned by
Respondent’s higher management. Apparently at the celebra-
tion, he was given the gift of a Chiefs cap as part of a company-
authorized office gift exchange and he, thereafter, wore the cap
for several hours.
To the extent that Richardson’s testimony is deemed to be
inconsistent with that of Miller, I do not credit Richardson for
the reasons I gave earlier.
CON-WAY CENTRAL EXPRESS 1077
I do not regard Respondent’s failure to correct Miller’s be-
havior under these circumstances as constituting discriminatory
enforcement of its uniform and appearance policy.
General Counsel also appears to contend that the evidence of
record to the effect that DSRs upon occasion wore non-issue
585
shirts without insignia, non-issue shorts, blue jeans, overalls,
and a silk jacket establishes a discriminatory failure by Re-
spondent to enforce its uniform policy.
None of these instances involved the display of any logo or
insignia, other than Respondent’s, and all were shown to be a
reasonable interpretation of Respondent’s policy. Thus, DSRs
were allowed to wear non-issue shorts, clean shirts, and jeans
until they had been issued a properly fitting uniform. Paren-
thetically, I do not credit Affolter to the extent that he testified
that the foregoing garments were worn after properly fitting
uniforms had been issued. Second, DSRs were allowed to wear
insulating garments while working outdoors on the dock in
inclement weather. And, third, they were allowed to wear non-
issue embroidered jackets bearing an authentic Respondent’s
logo and a picture of Respondent’s equipment until Respondent
had arranged to issue such a jacket.
I do not regard any of the foregoing as indicative of a dispa-
rate, let alone discriminatory, enforcement of Respondent’s
uniform and appearance policy.
The final evidence purportedly establishing discriminatory
enforcement of the uniform and appearance policy involves a
non-issue felt hat worn by DSR Johnny Banks. Affolter,
Richardson, and Banks testified that Banks wore this hat, both
in the
586
terminal and while functioning as an over-the-road driver dur-
ing the winter of 1995/1996. Banks further testified that he had
never been told to remove the hat by management. Both
Vukovich and Key testified that they had asked Banks to re-
move the hat and had not seen him wear it thereafter.
Banks was an argumentative witness, possessed of selective
memory, who had been discharged by Respondent after failing
an alcohol test.
For these reasons, as well as those given previously, and
based on my observation of the demeanor of the witnesses, I
credit Vukovich and Key over Banks on the question of
whether he had been instructed to remove non-issue apparel.
For the foregoing reasons, I conclude that Respondent has
established the specific circumstances justifying its prohibition
of the wearing of union insignia by uniformed DSRs.
See United Parcel Service, 195 NLRB 441 (1972); Ever-
green Nursing Home, 198 NLRB 775 (1972).
The cases advanced by General Counsel appear to be factu-
ally inapposite to the situation before me. Thus, Davison-
Paxon Co., 191 NLRB 58 (1971) did not involve uniformed
employees and dealt with a “vague and uncertain prohibition”
and a button which was “not conspicuous.” Howard Johnson
Motor Lodge, 26 NLRB 866 (1982) did not involve either a
formal policy
587
or the continued application of a long-standing, rigorously en-
forced rule. In Mead Corporation, 314 NLRB 732 (1994), the
employer operated a paper mill and its employees had no con-
tact with the general public and little contact with its customers
and the employer’s public image was of no relevance. Meijer,
Inc., 318 NLRB 50 (1995) did not involve “consistent and non-
discriminatory” enforcement of a button prohibition. Finally,
Meyer Waste Systems, 322 NLRB 244 (1996) involved dis-
criminatory enforcement and a “small, inconspicuous” pin.
For the foregoing reasons, I conclude that Respondent’s en-
forcement of its uniform and appearance policy on February 19,
1996 did not violate Section 8(a)(1) of the Act and the resulting
suspension of seven DSRs did not violate Section 8(a)(3) of the
Act.
The foregoing conclusions would appear to moot two issues.
First, the question of whether the content of the message on the
union’s button created such a probability of customer alienation
or internal labor unrest as to constitute separate and distinct
bases for a finding of special circumstances; and, second, the
issue preserved for appeal of whether post-violation evidence is
of relevance in establishing special circumstances which were
in
588
existence at the time of an alleged violation.
On March 4, Vukovich admittedly authored and posted on
the company bulletin board a memo to employees which con-
tained the following language: “[. . . an NLRB charge is a seri-
ous matter. It doesn’t cost the union a dime to file a charge and
have the National Labor Relations Board do its work. There
are investigations and even court-type proceedings that can
follow, and the cost to the company affect to (sic) the bottom
line.”
General Counsel contends that the quoted language is a
threat of unspecified reprisals for filing charges, while Respon-
dent argues that it is an exercise of free speech under Section
8(c) of the Act.
None of the authorities cited by either side is directly on
point. Upon consideration, I do not believe that stating the fact
that defending a ULP charge has an impact upon an employer’s
net constitutes a threat of economic reprisals nor is such a
statement inherently coercive in nature.
Accordingly, I conclude that the language does not violate
Section 8(a)(1).
Respondent has a written policy concerning the use of bulle-
tin boards which, as relevant, provides: “Boards are maintained
for the proper posting of official company matters, for informa-
tion required by federal and state law, for company
589
materials relating to employee programs and services, and for
certain items of business interest to employees.
Only pre-approved company-originated notices and legally-
required information may be posted on company bulletin
boards. Any unauthorized material posted on company bulletin
boards will be removed and destroyed.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1078
The policy goes on to charge the regional service center
manager with policing the bulletin boards and removing unau-
thorized materials. Obviously, in this case, that’s Mr.
Vukovich.
On March 11, 1996, Affolter posted an announcement of an
upcoming union meeting on Respondent’s principal bulletin
board. Vukovich, upon being informed of the notice by another
DSR, removed it from the board. Vukovich then entered the
dispatch room and asked Affolter who had posted the an-
nouncement. When Affolter replied that he had done so,
Vukovich stated that the board was only for company notices.
To the extent that Affolter’s account of this interchange dif-
fers from Vukovich, I have credited the latter for the reasons
given earlier and because Affolter testified that Vukovich mis-
quoted the posting policy, a circumstance which I believe to be
unlikely, given my observation of Mr. Vukovich.
It is worthy of note, however, that Affolter’s account of
590
the interchange showed him to be utterly unintimidated by the
question directed at him by Vukovich.
General Counsel argues that one improper posting, together
with the fact that private solicitations were displayed on tables
near the bulletin board, demonstrates a discriminatory enforce-
ment of Respondent’s bulletin board policy and that
Vukovich’s question to Affolter was an unlawful interrogation.
Respondent demurs as to both arguments.
Materials on the table, rather than on the bulletin board, of
the drivers room are not covered by Respondent’s policy on
bulletin board use. Parenthetically, those materials are subject
to Respondent’s distribution policy, which policy would have
permitted Affolter to leave the announcement on one of the
tables.
I, therefore, conclude that things left on the table are immate-
rial to the question of whether anyone could post or remove
non-company originated materials on the company’s bulletin
boards.
Affolter and Vukovich testified to having previously seen a
notice concerning a private sale of hogs on one of the company
bulletin boards. Vukovich admitted that he should have re-
moved this non-company originated notice, but that he had not
done so. Affolter testified that he had seen two other non-
company
591
originated notices on the bulletin boards, but Vukovich denied
having seen them.
Again, I credit the latter. Vukovich also credibly testified
that he had removed non-company originated materials from
the bulletin boards on, at least, one occasion.
Absent the citation of any authority to the contrary, I find
that Vukovich’s admittedly selective enforcement of Respon-
dent’s bulletin board policy was discriminatory and violative of
Section 8(a)(1) of the Act. Vukovich’s question to Affolter was
designed to determine who was not in conformity with com-
pany policy in order to explain that policy. There is no indica-
tion that the explanation was threatening or coercive. Accord-
ingly, I conclude that Vukovich’s question did not violate Sec-
tion 8(a)(1).
I will issue an appropriate Order upon receipt of the tran-
script.
Are there any other matters to take up before I close the re-
cord?
(No response)
JUDGE CHARNO: Hearing none, let me thank you for your
cooperation this week, and I appreciate your patience today.
(Whereupon, at 10:00 A. M., the hearing in the above-
entitled matter was closed.)