Expressman Courier Service, Inc

National Labor Relations Board - Board Decisions

Apr 24, 1989

293 N.L.R.B. 769 (N.L.R.B. 1989)

EXPRESSMAN COURIER SERVICE
Expressman Courier Service , Inc and Teamsters
Local Union No 251 , a/w International Broth-
erhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO i Case
1-CA-24646
April 24, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 29, 1989, Administrative Law Judge
Peter E Donnelly issued the attached decision
The General Counsel filed exceptions and a sup
porting brief
The National Labor Relations Board has delegat-
ed 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,2 and
conclusions3 and to adopt the recommended
Order 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Expressman
Courier Service, Inc, Cranston, Rhode Island, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order, except the at-
tached notice is substituted for that of the adminis-
trative law judge
' On November 1 1987 the Teamsters International Union was read
mitted to the AFL-CIO Accordingly the caption has been amended to
reflect that change
2 The General Counsel has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an admmistra
tive law judge s credibility resolutions unless the clear preponderance 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 re
versing the findings
We find merit however in the General Counsels exceptions to certain
inadvertent errors made by the judge In this regard the proper name of
driver McKay is Joseph McKay and the document prepared by the Re
spondent s majority shareholder Elizabeth DiLuglio entitled Review
Drivers for Increase reflects the names of 29 employees including su
pervisors and drivers In addition we note that Supervisor LeFebvre told
driver Zozak that the Respondent decided to discharge driver Bernard
on Saturday April 4 1987
8 The General Counsel has excepted to the judge s conclusion that the
Respondent did not violate Sec 8 (a)(3) and ( 1) of the Act by failing to
reemploy driver Bernard after the Respondent learned that Bernard was
not the subject of the complaint on which his discharge was based In
this regard we note that there is no evidence that Bernard requested re
employment In addition the record contains no evidence that the Re
spondent had a practice of offering reemployment to discharged employ
ees or has ever offered reemployment to any discharged employee
* We have modified the judge s notice to more fully conform with his
recommended Order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
769
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
WE WILL NOT discharge our employees, thereby
discriminating in regard to their hire and tenure of
employment, in order to discourage membership in
Teamsters Local Union No 251, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse
men and Helpers of America, AFL-CIO
WE WILL NOT interrogate employees concerning
their union activities or the union activities of other
employees
WE WILL NOT give employees the impression
that their union activities are under surveillance
WE WILL NOT discourage employees from asso
crating with prounion employees
WE WILL NOT threaten to discharge employees
for associating with prounion employees
WE WILL NOT threaten to close our business if
the employees select union representation
WE WILL NOT solicit grievances or promise ben
efits to employees to discourage union representa
tion
WE WILL NOT unlawfully contest the unemploy-
ment compensation claims of employees for having
filed unfair labor practice charges
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer William Kozak immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posy
Iron, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings , plus interest
WE WILL notify him that we have removed from
our files any reference to his discharge and that the
discharge will not be used against him in any way
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of the above named or any other labor organiza
tion
EXPRESSMAN COURIER SERVICE, INC
293 NLRB No 94
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kathleen McCarthy Esq, for the General Counsel
George Francis McDonnell Esq and David Mayberry
Esq of Cranston, Rhode Island, for the Respondent
DECISION
III THE ALLEGED UNFAIR LABOR PRACTICES
A Facts2
1 Supervisory status of Al DiLuglio, Steven Keane,
and Greg LeFebvre
STATEMENT OF THE CASE
PETER E DONNELLY, Administrative Law Judge The
original charge was filed on April 9 1987 by Teamsters
Local Union No 251, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Charging Party or the Union) The ongi
nal charge was amended on May 20, 1987 and a corn
plaint thereon issued on June 24, 1987, alleging that Ex
pressman Courier Service Inc (Respondent or Employ
er) violated Section 8(a)(3) of the Act by discharging
employees William Kozak and Edward Bernard because
of their activity on behalf of the Union The complaint
also alleges that Respondent violated Section 8(a)(1) of
the Act by granting wage increases to employees and by
unlawfully interrogating, threatening, and otherwise co
ercing employees The complaint further alleges that Re
spondent violated Section 8(a)(4) of the Act by contest
ing the unemployment compensation claims of Kozak
and Bernard An answer thereto was timely filed Pursu
ant to notice, a hearing was held before me on Septem
ber 2 and 3 and November 3, 4, and 5, 1987 Briefs have
been timely filed by the General Counsel and Respond
ent, which have been duly considered
FINDINGS OF FACT
I EMPLOYERS BUSINESS
The Employer is a corporation with an office and
place of business in Cranston Rhode Island where it is
engaged in the operation of a parcel delivery service
Employer annually derives gross revenues in excess of
$50 000 for the transportation of freight and commodities
from the State of Rhode Island directly to points outside
the State of Rhode Island The complaint alleges the
Employer admits and I find that the Employer is an em
ployer engaged in commerce within the meaning of Sec
tion 2(6) and (7) of the Act
II LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act i
' The General Counsel moved in its beef to withdraw from the com
plaint pars 7 (b)(iv) and (vi) Because no testimony was offered to support
those allegations the motion is granted
2 There is conflicting testimony regarding some allegations of corn
plaint In resolving these conflicts I have taken nto consideration the ap
parent interests of the witnesses In addition I have considered the inher
ent probabilities the probabilities in light of other events corroboration
or lack of it and consistencies or inconsistencies within the testimony of
each witness and between the testimony of each and that of other wit
nesses with similar apparent interests In evaluating the testimony of wit
nesses I rely specifically on their demeanor and have made my findings
accordingly Although apart from considerations of demeanor I have
taken into account the above noted credibility considerations my failure
to detail each of these is not to be deemed a failure on my part to have
fully considered it Walkers 159 NLRB 1159 1161 (1966)
a Al DiLuglio
The record d scloses that Al DiLuglio is the husband
of Elizabeth DiLuglio majority shareholder of Respond
ent Previously he was part owner of the competing de
livery service named Delivery Service Incorporated
which has since gone out of business He works at the
terminal every workday, averaging 6 hours a day and
over 30 hours a week He answers telephones and deals
with the customers as a representative of the Respond
ent With respect to his hiring authority, DiLuglio testi
fled that it is necessary for his wife to anprove hiring
although several employees testified that they were hired
by Al DiLuglio unaware of any participation that Eliza
beth DiLuglio may have had in the hiring process
Keane testified that Al DiLuglio participated in corpo
rate business and disciplinary decisions, and the record
bears this out with Al DiLuglio s involvement in the dis
charges of both Bernard and Kozak
Despite the fact that Al DiLuglio has no ownership
position, and that he testified that he receives no salary
and is presently unemployed, I conclude on the facts of
this record that Al DiLuglio is viewed by drivers and
the public as clearly aligned with management, in a
manner more than sufficient to make him an agent of Re
spondent and to make Respondent accountable for his
actions Barnett Supply Co, 278 NLRB 1005 (1986)
b Keane and LeFebvre
Keane and LeFebvre are part owners of Respondent,
each owning 8 3 percent of the stock with Elizabeth Di
Luglio owning the remainder Both also act as dispatch
ers and are responsible for directing the activities of the
drivers in the delivery and pickup of parcels during the
workday Keane testified that he can correct drivers and
show them how to do their work Both are consulted in
evaluating employees for raises and sometimes ride with
drivers to evaluate their performances It appears that
their recommendations on those matters are normally ap
proved As owners, they participate in corporate deci
Sion making including disciplinary decisions as evi
denced by their participation in the decision to discharge
Bernard Keane testified that as to hiring and firing he
recommends to Elizabeth DiLuglio and, with her ap
proval he has the authority to execute Given Keane and
LeFebvre s financial interest in Respondent, as well as
their direct role in the management of Respondent it
seems clear that Respondent must be held accountable
for their actions as its agents Roskin Bros 274 NLRB
413 (1985)
2 Organizational activity
Respondent operates a parcel pickup and delivery
service out of its place of business in Cranston, Rhode
Island, and employs about 25 drivers in its operation
EXPRESSMAN COURIER SERVICE
along with dispatchers, warehousemen, clericals, and
sales personnel, for a total complement of about 50 em
ployees
Early in the week of March 29, 1987,3 several of Re
spondent s drivers, specifically William Kozak, Edward
Bernard , Jim McKay Kevin 0 Donnell Paul D'Entre
mont, and Kenny Brown, unhappy about their working
conditions, were discussing their problem after work in
the parking lot of a nearby business where they parked
their cars The discussion took place after work and just
before driving home D Entremont had the telephone
number of the Union and gave it to Kozak who agreed
to contact the Union for information about organizing
On Wednesday April 1, Kozak spoke to Charlie Hankin
son, a union business agent, who gave him some informa
tion and told him they would need a meeting of the dnv
ers, and particularly that they would need authorization
cards from one third of the drivers in order for an
NLRB election to be held After work on April 3, once
again in the parking lot, Kozak told the group what he
had been told by Hankinson and that Hankinson had sug
gested that the drivers would meet with the Union It
was agreed that Kozak would call Hankinson and set up
a meeting Kozak did this and the meeeting was sched
uled for 2 p in on Saturday, April 4 Union Representa
tives Charles Hankinson and Lester Andrews spoke to
them at this meeting 0 Donnell was designated as
spokesman for the drivers present who included, in addi
tion to those named above, Kevin Rodriguez and Al Pia
ciante The drivers aired their complaints and were ad
wised about organizing and the benefits of union organs
zation The drivers present at this meeting all signed
union authorization cards It was also agreed that the or
ganizing effort among the drivers would be done secret
ly To this end, 0 Donnell was given some authorization
cards and he gave a few to Kozak
3 Kozak s discharge
Elizabeth DiLuglio president and majority owner of
Respondent testified that she maintained a petty cashbox
in an unlocked drawer of her desk usually containing
about $100 to $250 The petty cash was used to reim
burse drivers for gas or tolls paid by them when they
turned in receipts for such out of pocket expenses It was
also used by William Fallon, night loading superintend
ent, who occasionally gave money to the driver on the
night run to New Jersey for gas and tolls Fallon would
leave a slip in the box with the amount and the driver
would turn in the receipts for the expenditures the fol
lowing day
DiLuglio testified that sometime in late March or early
April she discovered, in reconciling the petty cash box
money that small amounts of cash were missing from
the box She discussed the matter with her husband, Al
DiLuglio and they narrowed the suspects to the two in
dividuals who were in the building alone at night, i e,
Fallon and Kozak 4 Fallon worked from 9 until about
3 All dates refer to 1987 unless otherwise indicated
* While the New Jersey driver was also present loading the truck with
Fallon both testified that this driver always requested any money he
needed from Fallon and did not himself go into the petty cash box
771
3 30 a in or whenever the New Jersey truck departed
Kozak came in about 6 a in to pick up tapes for an early
delivery prior to beginning his normal workday about 8
a in Both had keys to the office and both knew how to
turn off and reset the alarm system on entering and leav
ing the premises
Al DiLuglio determined to set a trap to see who
was stealing the money To this end on Thursday night,
April 2, about 9 30 p in, Al DiLuglio went to the petty
cash box and counted the money It contained $138
Only Fallon was on the premises at that time Al DiLug
Ito then left and returned again on the morning of
Friday, April 3, about 5 a in after Fallon had left There
was still $138 Al DLLugho left again and waited until
Kozak arrived about 6 a in to pick up the tapes for his
early morning delivery After Kozak left, Al DLLuglto
reentered the terminal and counted the petty cash and
discovered that $40 was missing Thereafter, he went
home and told his wife what he had discovered Kozak
returned at 8 a in to pick up his packages and worked a
normal day Nothing was said to Kozak about the matter
on Friday, and no further investigation was conducted
Both Elizabeth and Al DiLuglio testified that it was not
their intention to fire Kozak but to discuss the matter
with him However, there was no discussion with Kozak
on Friday
On Monday, April 6, Elizabeth DiLuglio called Greg
LeFebvre to have him come in at 6 a in because she did
not want Kozak in the building alone However, this pre
caution became academic when Kozak's car broke down
and he was unable to get in until his normal 8 a in start
ing time for his regular route Once again on Monday
Kozak did a normal day s work and no one spoke to him
about the alleged theft When asked if she had called
Kozak in to ask about the alleged theft she responded
No, I didn t I was planning on talking to him
Monday night" However, according to Elizabeth Di
Luglio, Kozak was irate and agitated in the morn
ing, throwing packages into his truck, and she was afraid
to confront him Elizabeth DiLugho testified that she de
cided to eliminate any discussion with Kozak stating
Well I waited until he came in at night and he was still
agitated I decided that I would eliminate it "
Other events occurred on Monday afternoon Kozak
testified that about 4 15 or 4 30 p in he spoke to drivers
Mike Rannucci and Andy McKeon just outside the
building He asked them if 0 Donnell had called them
over the week about signing cards for the Union They
replied that he had but that they did not want to sign
them Rannucci then told Keane that someone had
asked him to sign a union card up the street Having
learned that someone was trying to get people to sign
union cards, Keane testified that he got a little nervous
and did not know what to do Al DiLugho was on the
road and Elizabeth DLLugho was in her office Keane
decided to share this information with Elizabeth DiLug
ho Keane testified that Elizabeth DiLugho became
kind of nervous According to Keane she said, "What
do you mean union cards down the corner? Well, they
are trying to get a union in here She asked me who was
down there I didn t know who was down there At
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this point according to Keane, she paged Al DiLuglio
on his beeper for him to call her Al DiLuglio testified
that he spoke to his wife by telephone on Monday about
4 p in , responding to the page According to him, she
was upset, telling him that Kozak was acting like a
maniac throwing packages around and hollering and
screaming and she asked him to come back and fire
Kozak At this time Al DiLuglio drove back to the ter
minal and met Kozak as he was walking to the parking
lot with another driver, Jim McKay Al DiLuglio pulled
up to where they were walking, accused Kozak of being
a fucking thief and told him he was fired After an ex
change of profanity, McKay and Kozak went to the
parking lot and, shortly thereafter, Kevin 0 Donnell ar
rived As they were talking together, Al DiLuglio and
LeFebvre came into the parking lot Al DiLuglio ap
proached Kozak as he and 0 Donnell were talking in
Kozak s car DiLuglio told Kozak he had better leave if
he knew what was good for him and told 0 Donnell and
McKay not to be seen around him because they were
getting a bad reputation LeFebvre also took McKay
aside and asked him if Kozak was trying to get him to
sign union cards McKay responded no, that he did not
know what LeFebvre was talking about, although, as
noted above, McKay had signed an authorization card at
the union hall on Saturday LeFebvre warned him not to
hang around with Kozak, that he was giving McKay a
bad reputation 5
Kozak also testified that LeFebvre came to where
0 Donnell and Kozak were sitting in Kozak s car, bent
down, and said to 0 Donnell, What s up, where s the
cards? We know all about the Union About this time,
Elizabeth DiLuglio came into the parking lot and made
an attempt to bring matters under control because the
discussions had become very loud She testified that
while she was in the parking lot and at a time when
Kozak and O'Donnell were talking in Kozak s car, she
was able to determine that 0 Donnell asked Kozak
`What s this about a union or What s this about a
union card She testified that she did not actually hear
the words spoken, but knew what was being said by her
ability to lip read She then said to everyone What s
this about a union" stating that she could not believe
what was going on She then told Al DiLuglio and Le
Febvre to return to the terminal and all of them began
to leave As they were leaving LeFebvre told McKay,
Don t even think of signing a union card With respect
to Kozak s alleged theft, Elizabeth DiLuglio did not
report the theft to the police until April 14 when on the
advice of Matthew Duffey, a personal friend and Cran
ston police department detective, she reported the theft
to the Cranston police department However the DiLug
lios declined to press charges and the case was closed on
April 15
4 Bernard's discharge
Bernard was hired in September 1986 as a pickup and
delivery driver The geographical area he served includ
ed Lincoln Rhode Island On Wednesday April 1 Ber
nard made a delivery of about 13 packages of Tupper
6 LeFebvre did not testify at the hearing
ware to a house in Lincoln The woman Jean Hudson,
was accepting delivery for her neighbor Tupperware
Manager Linda Burton
Bernard asked to leave the packages on her porch but
Hudson told him that she wanted the packages put in her
cellar The cellar was wet from rain, but Hudson s hus
band had put planks on the floor to keep the packages
dry Bernard remarked that it looked as if he could not
throw the packages into the basement and Hudson
agreed that he could not Bernard asked if he could drive
across the lawn to back up to the cellar, and Hudson re
fused Thereafter, Bernard delivered the packages into
the cellar although as he testified he wasn t too happy
with it
While Bernard was delivering the packages, Hudson
called Burton and told her that the driver was not
pleased with having to deliver into the cellar and asked
if she was asking more than the driver was supposed to
do Burton said she would find out
On the following day Thursday April 2, Burton and
some other Tupperware representatives were at the
warehouse of My Tee Sales Co, distributors of Tupper
ware products in Rhode Island Burton asked Warehouse
Foreman Steve Hanlon about a problem with a delivery
in which a driver, rather than delivering packages to a
second floor apartment, left the packages on the first
floor, got a signature, and left Hanlon assumed that this
second floor incident took place in Lincoln, because
Burton lived in Lincoln Later in the day, Hanlon called
Al DiLuglio and complained to him about the second
floor incident, erroneously describing the location of that
incident as Lincoln rather than Pawtucket where the in
cident had actually occurred He told Al DiLuglio that
he wanted the problem resolved because if the Tupper
ware managers and dealers who received the packages
were not happy he would have to find another delivery
service
Later, on Thursday, April 2 6 when Bernard came in
from his route about 4 30 p in , Al DiLugho confronted
him with the problem that DiLuglio understood to be
Bernard's refusal to make a second floor delivery in Lin
coin Understandably, Bernard protested that he had not
refused to make any second floor delivery that day and
Al DiLuglio remarked that Hanlon must have made a
mistake in describing the incident as upstairs Bernard
volunteered that his problem was that he did not want to
make a basement delivery and that it was not cost effi
cient for the Company to make inside deliveries Al Di
Lugho told Bernard that he was supposed to deliver
downstairs on request The exchange became more
heated and both were loud and abusive toward one an
other even to the extent of raising their hands to one an
other However no fight occurred and Al DiLuglio left
the scene
After the close of business on Friday evening, April 3,
a management group consisting of Keane, LeFebvre, Al
and Elizabeth DiLuglio, and James Apostolou owner of
Rhode Island Freight Systems, held an informal end of
6 Although Bernard testified that it was Friday the corroborating testi
mony of Al DiLuglio and Keane convinces me that Thursday is the cor
rect date
EXPRESSMAN COURIER SERVICE
the week discussion Respondent makes pickups and de
liveries for Rhode Island Freight Systems and Apostolou
was there discussing a business matter
The discussion turned to the work performance of
Bernard His work record and attendance were re
viewed Al DiLuglio raised the Tupperware matter, spe
cifically the downstairs' incident in Lincoln, and his
confrontation the previous day with Bernard There was
some discussion about his poor attitude,' prior incidents
involving customer deliveries, and the care and use of his
vehicle A decision was made to terminate him Eliza
beth DiLuglio asked LeFebvre to call Bernard with the
message but attempts to reach him Friday night and
over the weekend were unsuccessful On Monday morn
ing about 7 15 am, before he left his home for work,
Bernard received a call from LeFebvre telling him that a
corporation decision had been made to discharge him
because he had lost the Tupperware account
After this telephone call, Bernard went to the facility
and told the other drivers he had been fired In the park
ing lot, he went to Kozak who went into the office
where he was told by LeFebvre about the decision that
had been made on Friday to fire Bernard
On being advised by Bernard that he did not have any
second floor delivery problem in Lincoln, Kozak, who
had a pickup at My Tee Sales on his route this day
spoke to Hanlon about the incident about 2 p in He ex
plained to Hanlon that Bernard had no second floor de
livery in Lincoln Hanlon then checked with Burton
who told him the second floor incident was in Pawtuck
et, not Lincoln Later on that day, Kozak called Hanlon
from his route, and Hanlon told him about the mistake
Kozak said he would see Al DiLuglio about it On Tues
day, when Kozak did not appear for his customary
pickup at My Tee Sales, Hanlon called Al DiLuglio He
apologized for the mistake he had made in that he should
have said Pawtucket rather than Lincoln DiLuglio told
him not to worry about it that the Lincoln driver had
jeopardized two other accounts and that his wife had a
long list in the office It is undisputed that after learning
of the mistake Respondent made no effort to rehire Ber
nard
5 The 8(a)(1) allegations
a Greg LeFebvre and Al DiLuglio-April 6 -parking
lot conversation
The probative facts concerning this conversation are
set out above in connection with Kozak s discharge Le
Febvre participated in this conversation including ques
tions to 0 Donnell concerning the whereabouts of union
cards, and asking McKay if Kozak was trying to get him
to sign a union card Such inquiries constitute unlawful
interrogation because they interfere with the organiza
tional rights guaranteed to employees under the Act Le
Febvre also told employees that Respondent knew about
the Union Such remarks are coercive because they give
to employees the impression that the union activities are
With respect to Bernard s attitude D Entremont one of the authon
zation card signers and a union supporter testified that Bernard had a
stubborn and unpleasant attitude
773
under surveillance by the employer thus inhibiting the
organizational rights guaranteed to employees under the
Act Likewise, it is also inhibitive of those rights to
threaten, even by implication, the employment of em
ployees because of their association with prounion em
ployees, which Respondent did, by warning McKay that
he was getting a bad reputation hanging around
Kozak Clearly LeFebvre unlawfully threatened McKay
as he was leaving the parking lot by telling McKay not
even to think about signing a union card
Al DiLuglio, during the same conversation, violated
the Act in much the same manner He had just dis
charged Kozak unlawfully because of his union activity
Thus he believed that Kozak was a union adherent In
these circumstances, it was unlawful to question employ
ees about their relationships with Kozak or to threaten
them, expressly or impliedly, for speaking to or associat
ing with Kozak, because such prohibitions constitute an
unlawful restriction on their union activity protected
under Section 7 of the Act
b April 7-meeting of employees
After the parking lot incident on the evening of April
6, LeFebvre, Keane Al DiLuglio, and Elizabeth DiLug
ho gathered to discuss the union phenomena and to
assess its implications It was decided that Elizabeth Di
Luglio should hold a meeting of the dnvers on the fol
lowing day to face the problem The meeting was
short, about 10 minutes or so The meeting was attended
by Keane, LeFebvre and the DiLuglios Elizabeth Di
Luglio told the employees that Respondent was a new
company and that it could not afford a union She told
the drivers that if the Union did get in and she could not
support a union she would close the doors She also
stated that they did not really need a union and that, if
there was a problem, to see her She asked why they
needed a union when she was always there, and always
willing to help them and why did they not come to her
first before going to the Union and involving everyone
in that In these circumstances Elizabeth DiLuglio's
comments amount to a solicitation of drivers to come to
her rather than the Union with the clear implication that
any grievances brought to her would be favorably re
solved Such solicitations to induce employees from exer
cising their right to union representation coerces them
within the meaning of Section 8(a)(1) of the Act
Al DiLuglio also took occasion to speak to the dnv
ers, and his remarks were somewhat more direct Ac
cording to Keane he told them in essence, that to avoid
any problems with the Union he would close down and
start another company with a different name and employ
only owner operators as drivers Basically, Al DiLuglio
was threatening to close the plant if it was organized
resume operations under another name, and eliminate
using employees as drivers presumably to avoid further
organizational attempts Such threats of closing, with the
concomitant loss of employment to drivers is clearly in
terference with the organizational rights of employees
protected by Section 8(a)(1) of the Act
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c Mid April 1987
Sometime during mid April 1987, Elizabeth DiLuglio
called Ken Brown into her office She asked him if he
had signed a union card Brown admitted that he had
and she asked him why Brown responded that it was
not really for more money but for better vehicle and
working conditions DiLuglio remarked that they did not
have to go the Union, that they could have come to her
DiLuglio added that what was done had been done and
that if he had any problems, to talk to her personally In
substance, DiLuglio s remarks were coercive and the in
terrogation was unlawful in that DiLuglio s offer to
assist Brown was tantamount to unlawful employer inter
ference with a union organizational effort by soliciting
employees to bring their complaints or grievances direct
ly to the employer
6 Wage increases
Elizabeth DiLuglio testified that Respondent was in
corporated in February 1985 and began operations in
July 1985 on the strength of one contract with the State
of Rhode Island, with one driver and two trucks Thus
the business had been operating only a couple of months
at the end of the fiscal year on September 30 1985 It
appears that starting employees without experience were
normally given $300 a week with $25 raises after 30 days
and 60 days of employment, assuming they were re
tamed Experienced new hires started at top salary and
would not get the 30 day raises Thus within 60 days,
the drivers were all making comparable wages Elizabeth
DiLuglio also testified that the payroll was an informal
matter that she handled herself by hand until July 1986
when the business boomed and most of the drivers were
hired, due to the fact that another competing delivery
service went out of business
According to Elizabeth DiLuglio, beginning in Sep
tember 1986 in addition to the 30 and 60 day raises, em
ployees were performance reviewed at 6 month intervals
at the end and mid fiscal year i e September and March
The record however discloses no formal application of
these review standards but does in any event disclose a
review of all drivers in March 1987 A handwritten doc
ument prepared by Elizabeth DiLugho captioned,
Review Drivers for Increase ' dated March 25, 1987, is
in evidence She testified that it was prepared and dated
by her at that time The document reflects the names of
29 drivers Raises were given to 11 drivers Others were
noted as questionable, pending further review Pencil no
tations apparently made later, show that Bernard and
Kozak were fired and one driver, Al Piacento quit
On April 6, DiLugho gave the pay increase informa
tion to the payroll company, and also notified some em
ployees that they would be receiving pay raises in their
checks on Thursday, April 9 On the next payday, Thus
day, April 16 four more were given raises and on the
following payday, Thursday, April 23 raises were given
to two additional employees Elizabeth DiLugho testified
that all the raises were given and made pursuant to indi
vidual evaluations of performance8 and that in the cases
of drivers Anthony Licata and Joseph McKay, withheld
until April 16 and 23, respectively, until they were ap
proved after an reevaluation
7 Interference by unlawfully contesting the
unemployment compensation claims of Kozak and
Bernard
After their discharges on April 6, both Kozak and Ber
nard went to the Rhode Island Department of Employ
ment Service (DES) to file claims for unemployment
compensation Within a couple of days, Elizabeth Di
Luglio was contacted by the DES, which inquired as to
the reasons for their discharges According to DiLuglio,
she responded that while they had both been discharged,
she wanted to have them treated as having been laid off
for lack of work for DES purposes so that they would
be eligible for unemployment compensation Elizabeth
DtLugho explained this misrepresentation as an act of
compassion based on her consideration for their families
The DES agent advised her this could be done so long
as she was aware that Respondents DES account would
be charged Thereafter, benefits were allowed to both
Kozak and Bernard
Shortly thereafter, she spoke to her attorney who ad
vised that it was wrong to have told DES that they were
laid off for lack of work when they had really been dis
charged and she called DES in an effort to correct her
error On the advice of DES DiLuglio appealed the de
cision by letter on April 22, and hearings on those ap
peals were held on July 10 for Kozak and July 12 for
Bernard The decisions in both cases issued on July 21,
denying Respondents appeals on the grounds that at
though the Respondent may actually have discharged
them, benefits should be allowed because to hold other
wise would unfairly penalize all other employers in the
State of Rhode Island because their common fund would
have to be tapped in order to pay the benefits allowed
up until the time that benefits would have been cut off
B Discussion and Analysis
1 Kozak's discharge
Kozak was one of the group of drivers involved in the
first discussions about organizing the Respondent He
was their contact in communicating with the Union He
arranged the first organizational meeting at the union
hall and was given authorization cards at this meeting
He also spoke to other drivers, notably Mike Ranucci
about their interest in supporting the Union s organiza
tional effort There is no doubt that Kozak was a prime
mover in the organizational effort
Elizabeth DiLuglio denies that she was aware of any
union activity until she received the unfair labor practice
charge filed by the Union on April 13 Although this
may have been the first formal document suggesting the
Union's involvement in an organizational process the
record makes it clear that DiLuglio became aware of the
8 Except for Dennis Bradley a new hire who was raised under the 30
and 60-day pay raise policy set out above
EXPRESSMAN COURIER SERVICE
Unions organizational effort about 4 p in on Monday,
April 6, when Ranucci told Keane about having been so
licited, and Keane, in turn, told DiLuglio who became
upset by this information
It is undisputed that Elizabeth DiLuglio was informed
of the union organizational activity by Keane and that
this information unsettled or alarmed her and that she
immediately called her husband The General Counsel
contends that as a result of that conversation, Al DiLug
ho returned to the terminal and discharged Kozak for his
participation in the Union s organizational effort Despite
Respondent's contention that Kozak was discharged for
theft, I am persuaded that the General Counsel's position
is supported by the evidence
First, assuming that Respondent had a good faith belief
that Kozak stole $40, the record makes it abundantly
clear that Elizabeth and Al DiLuglio intended only to
discuss the matter with him This much is conceded by
Elizabeth DiLuglio who testified that she only decided
to fire Kozak when he became agitated ' when he came
in from work on Monday night The record is, however,
noticeably short on detail as to what Kozak may have
said or done to cause Elizabeth DiLuglio to believe that
he was agitated The question is, what happened be
tween the time of the alleged theft and Kozak s dis
charge that caused Respondent to decide that rather than
talk to Kozak, he must be immediately discharged with
out even having been confronted by his accuser, or
given any opportunity to explain his position, or even
spoken to about the incident The major and significant
event was obviously the discovery by Keane and Eliza
beth DiLuglio that the Union was organizing the Re
spondent whereupon Kozak was precipitusly discharged
without notice
It strains credulity, in light of the timing of Kozak s
discharge to believe that he was discharged for theft
that had occurred several days previously The alleged
theft occurred in the early morning hours of Friday,
April 3 No one spoke to him about the incident from
then until the time he was discharged on Monday
evening, May 6 There is no adequate explanation for
summarily discharging Kozak within the hour after Eliz
abeth DiLuglio learned of the union organizing activity
It is simply too much to swallow
In addition, the evidence of union animus displayed by
representatives of Respondent and the emotionally
charged confrontation in the parking lot after Kozak s
discharge as well as other coercive 8(a)(1) antiunion
conduct set out above, all contribute to support the con
clusion that Respondent violated Section 8(a)(3) of the
Act and that Kozak's discharge was motivated by antiun
ion considerations
In applying the Wright Line9 test in the instant case, I
am satisfied that even assuming that Kozak committed
the theft in question, that this was not the motivating
factor in his discharge In other words, I conclude that
based on a full consideration of the entire record that the
General Counsel has made a prima facie showing that
Kozak s union activity was a motivating factor in Re
spondent s decision to fire him and further that Re
9 Wright Line 251 NLRB 1083 (1980)
775
spondent has not shown that he would have been dis
charged even if he had not been engaged in any union
activity
2 Bernard s discharge
The basic question raised by Bernard's discharge is
whether Respondent knew abou* his union activity Ob
viously, if Respondent was not aware that Bernard was
engaged in any union activity, it would not have been
possible to discharge him for that reason First, apart
from signing a union card at the Saturday meeting, Ber
nard 's union activity was minimal Moreover, in review
ing the probative facts, it appears that a delivery incident
occurred on Wednesday, April 1 Hanlon complained to
Al DiLuglio on April 2 Also, the corroborated testimo
ny of several participants established that the decision to
discharge Bernard was made at an impromptu meeting of
management on the evening of Friday, April 3, the night
before the union meeting of drivers at the union hall on
Saturday, April 4 Further, the record does not reveal
any evidence that Respondent was aware of any union
activity until late afternoon on Monday, April 6, when
Keane reported it to Elizabeth DiLuglio There is no
reasonable basis in the record on which to impute any
company knowledge of union activity prior to that time
Thus the decision to discharge Bernard as well as his dis
charge on the morning of Monday, April 6, occurred
before Respondent was aware of any organizational ac
tivity and therefore could not have been the motivation
for Bernard s discharge Thus it becomes apparent that
the reasons assigned by Respondent for the discharge,
i e , the downstairs incident, work record and attitude,
are credible
The General Counsel, however, takes the position that
even if Bernard s discharge was not discriminatory, Re
spondent s failure to recall Bernard after it learned, on
the following Tuesday, of Hanlon s error in identifying
the location of the second floor delivery incident and
after it became aware that Bernard was not responsible
for the second floor incident, was discriminatory I do
not agree Having concluded that the discharge was not
an unfair labor practice, the General Counsel is obliged
to show discrimination in Respondents subsequent fail
ure to offer reemployment and this has not been done A
review of the facts discloses that during their confronta
tion on Thursday evening , Bernard volunteered to Al
Diluglio the information cone ernmg the downstairs mci
dent for which he was responsible At this point DiLug
lio was aware at least that Bernard had been involved in
a downstairs incident in Lincoln and DiLugho had that
information when the decision to discharge Bernard was
made on the following day That incident was a prime
factor in the decision to discharge him The following
night a decision was made to discharge Bernard Hanlon
then called Al DiLuglio on Tuesday, April 7 apologized
for the error and explained the upstairs incident was in
Pawtucket not Lincoln The General Counsel argues
that having been advised of the error, the slate was clean
and that it was discriminatory for Respondent not to
offer reemployment to Bernard I do not agree First of
all, Al DiLuglio knew about the downstairs incident be
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause Bernard had volunteered the information to him
on Thursday evening and it was that incident rather
than the upstairs incident that was discussed on Friday
and was a motivating factor in Bernard s discharge It is
clear that the downstairs incident did occur and that,
along with his record, were known to Respondent and
were the primary causes for his discharge In these cir
cumstances, I cannot conclude that Hanlon s explanation
on the following Tuesday triggered any obligation on
the part of the Respondent to reemploy Bernard
3 Wage increase
The General Counsel concedes that in order to estab
lish illegality in the granting of wage increases, it must
show that Respondent was aware of the union organiz
ing activity and that the motivation for granting the in
creases was discriminatory
The facts, however, do not support this conclusion
Documentation in the record supports the fact that Eliz
abeth DlLuglio reviewed the drivers salary on March 25
and decided at that time to grant the wage increases in
issue This information was given to the payroll compa
ny on Monday, April 6, and the raises appeared in
checks distributed on Thursday, April 9 As noted
above, the probative evidence does not show any knowl
edge by Respondent of union activity until the evening
of Monday, April 6 Accordingly, it would not have
been possible for Elizabeth DlLuglio to have decided on
wage increases for antiunion considerations on March 25,
because at that time she was not aware of any union or
ganizing activity 10
General Counsel further contends that apart from the
above wage increases, several other drivers received pay
raises in the following two pay periods that the General
Counsel appears to suggest were discriminatory Howev
er, Saccoccia and 0 Donnell appear to have been ap
proved for the raise on March 25 even though not re
ceived until the payday of April 16 Licata and McKay
were also granted raises pursuant to the March 25
review after a supervised reevaluation Dennis Bradley a
recent hire was raised pursuant to 30 and 90 day after
hire raise policy Como was designated as not due by Di
Lulgio on the March 25 evaluation, and the record is not
clear why he was raised in view of that notation except
that DlLuglio testified that it was based on his perform
ance Clearly, the raises were contemplated by the
March 25 review with the exception of Bradley and
Como Although the record shows a delay in putting the
original and some of the subsequent raises (Saccoccia
and 0 Donnell) into effect there has been no showing
by the General Counsel that the decision was discrimina
tory either as to those raises or any of the others put into
effect later Essentially the General Counsel argues that
because Respondent was aware of union activity on
April 6, the raises granted thereafter were, by implica
tion discnmmatorily motivated However more is nec
essary to conclude that the wage increases were discnmi
10 The notations on the wage review document to the effect that
Kozak and Bernard were fired and Piacente quit were obviously not
made until after March 26 However this does not affect the validity of
the document
natory specifically that the granting of the wage in
creases was motivated by antiunion considerations This
has not been done and, accordingly I cannot conclude
that any of the wage increases, either before or after Re
spondent became aware of the Union s organizational
effort, were discriminatory
4 Interference by unlawfully contesting the
unemployment claims of Kozak and Bernard
The General Counsel contended that Respondent un
lawfully contested the unemployment compensation of
Kozak and Bernard because they had filed unfair labor
practice charges Respondent argues that its action was
taken on advice of counsel and lawful
It appears that when Elizabeth DlLuglio were first
contacted by DES, she explained that although they had
actually been discharged she wanted them treated as laid
off in order that they might receive benefits She was ad
vised by DES that this could be done so long as she un
derstood Respondents account would be charged
Unless we assume that DES was advising her to act ille
gaily, this would not be unlawful 11 According to Eliza
beth DiLuglio, despite this advice from DES, the matter
was taken up with her attorney and she was advised by
him that what she had done was criminal and on that
advice she reversed her position by telephone to DES on
April 15 However, this explanation seems contrived in
view of the fact that this reversal of position took place
dust 2 days after she received notice of the unfair labor
practice charge filed by Kozak and Bernard Also, apart
from its timing this reversal of position is also suspect
where it was allegedly based on the advice of Respond
ent s attorney since there appears to be no rationale in
the record for why the attorney was advising DiLuglio
that her conduct had been unlawful Accordingly, I con
clude that Respondent did unlawfully contest the unem
ployment benefits of both Kozak and Bernard for having
filed unfair labor practice charges in the instant case
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III above occurring in connection with Respondent s
operations described in section I, above have a close and
intimate relationship to trade traffic and commerce
among the several States and tend to lead to labor dis
putes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirm
ative action designed to effectuate the policies of the
Act I have found that Respondent discharged William
Kozak for reasons that offended the provisions of Sec
tion 8(a)(3) and (1) of the Act I shall therefore recom
mend that the Employer make him whole for any loss of
I1 This conclusion is supported by the decision on appeal wherein Re
spondent was not allowed to change its position
EXPRESSMAN COURIER SERVICE
pay he may have suffered as a result of the discrimina
tion practiced against him All backpay and reimburse
ment provided herein with interest, shall be computed in
the manner described in New Horizons for the Retarded 112
and F W Woolworth Co, 90 NLRB 289 (1950)
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By interfering with, restraining, and coercing em
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act
4 By discriminating against William Kozak and
Edward Bernard for having filed unfair labor practice
charges , Respondent has engaged in and is engaging in
unfair labor practices prescribed by Section 8(a)(4) of the
Act
S By discharging William Kozak, Respondent has en
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act 13
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed14
ORDER
The Respondent, Expressman Courier Service, Inc
Cranston, Rhode Island, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Interrogating employees concerning their union ac
tivities and the union activities of other employees
(b) Giving employees the impression that their union
activities are under surveillance
(c) Discouraging the association of employees with
prounion employees
(d) Threatening to discharge employees for their asso
ciation with prounion employees
12 In accordance with the Board s decision in New Horizons for the Re
Larded 283 NLRB 1731 (1987) interest on and after January 1 1987
shall be computed at the short term Federal rate for the underpayment
of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
18 In the absence of circumstances indicating the propriety of a visits
tonal clause as a part of the proposed remedial order the General Court
sel s request therefore is denied
'4 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 put
poses
777
(e) Threatening to close the business if the employees
selected union representation
(f) Soliciting grievances and promising benefits to em
ployees to discourage union representation
(g) Unlawfully contesting unemployment compensa
tion claims of employees for filing unfair labor practice
charges
(h) Discharging employees in order to discourage their
membership in or activities on behalf of Teamsters Local
Union No 251, a/w International Brotherhood, Team
sters, Chauffeurs, Warehousemen and Helpers of Amer
ica, AFL-CIO
(i) 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) Offer to William Kozak immediate and full rein
statement to his former job or, if that job no longer
exists, to substantially equivalent employment and make
him whole for any loss of pay he may have suffered as a
result of the discrimination practiced against him in the
manner set forth in the remedy section of this decision
(b) Remove from its files any reference to the dis
charge of William Kozak and notify him in writing that
this has been done and that evidence of his unlawful dis
charge will not be used as a basis for future personnel
action against him
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Cranston Rhode Island facility copies of
the attached notice marked Appendix 15 Copies of the
notice on forms provided by the Regional Director for
Region 1 after being signed by the Respondent's author
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
15 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 Nation
al 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