Greyhound Expostion Services

National Labor Relations Board - Board Decisions

Aug 14, 1979

244 N.L.R.B. 206 (N.L.R.B. 1979)

I)f( CISIONS OF NATIONAL LABOR RELATIONS BOARD
Greyhound Exposition Services and Phillip Duncan
Blazier. Case 21-CA-17214
August 14, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND) PENELLO
On May 16, 1979, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
protected concerted activities; that [)rayage Manager John
W. Roberts informed a union business representative that
an employee was going to be discharged for engaging in
union or other protected concerted activities: and that Gen-
eral Foreman Jack Sacco engaged in the following conduct:
(1t in September threatened employees that Respondent
would subcontract their work and discharge them because
they engaged in union or protected concerted activities; (2)
on various dates from August through October threatened
employees with discharge because they engaged in union or
other protected concerted activities; and (3) in October in-
structed employees to stay away from their union represen-
tatives and threatened to engage in reprisals against them it'
they failed to do so.
Respondent admits that Patricia Reiley, Raymond Mori-
arty, and John W. Roberts are supervisors and agents of
Respondent but denies that the conduct alleged to have
occurred violates the Act. Respondent also denies that Sac-
co is a supervisor and agent or that the conduct attributed
to him violates the Act. All parties were afforded full op-
portunity to appear, to introduce evidence, to examine and
cross-examine witnesses, to argue orally, and to file briefs.
Briefs were filed by Respondent and General Counsel and
have been carefully considered.
Upon the entire record in the case, including my observa-
tion of the witnesses and their demeanor and consideration
of the post-hearing briefs, I make the following:
FINDINGS oF FA(r
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Greyhound Exposition
Services, Santa Fe Springs, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This case
was heard before me in Los Angeles, California, on March
22, 1979. The complaint, which issued on December 15.
1978,i pursuant to a charge filed on October 26. alleges
violations of Section 8(a)(1) of the Act. More specifically.
the complaint alleges that in August account executives Pa-
tricia Reiley and Raymond Moriarty threatened employees
with discharge or other reprisals for engaging in union or
I All dates hereafter are in 1978 unless otherwise stated.
1. JURISI)IC( TION
Greyhound Exposition Services. herein called Respon-
dent, a Florida corporation and a wholly owned subsidiary
of The Greyhound Corporation. is engaged in the business
of installing commercial exhibits and operates a facility in
Santa Fe Springs, California. Respondent annually makes
purchases from outside the State of California in excess of
$50,000 and performs services in excess of $500,000 within
the State of California for customers who are engaged in
interstate commerce. Respondent admits and it is found
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. HE LABOR ORGANIZAHION INVOLVEI)
Respondent admits and it is found that Van Storage
Drivers, Packers, Warehousemen and Helpers. Local No.
389, International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America, herein called
Teamsters, is a labor organization within the meaning of
Section 2(5) of the Act.
III. ISSUES
1. Whether General Foreman Jack Sacco is a supervisor
and agent of Respondent.
2. If so, whether Sacco threatened employees that Re-
spondent would subcontract their work and discharge them
for engaging in union or other protected concerted activi-
ties, and whether he instructed employees to stay away
244 NLRB No. 29
206
GREYHOtUND EXPOSITION SERVICES
from their union representatives and threatened to engage
in reprisals against them if they failed to do so.
3. Whether Patricia Reiley and Raymond Moriarty. ad-
mitted supervisors and agents. threatened employees with
discharge or other reprisals for engaging in union or pro-
tected concerted activities.
4. Whether John W. Roberts. an admitted supervisor
and agent, informed a union business representative that an
employee was going to he discharged for engaging in union
or protected concerted activities and, if so, whether such
conduct violates the Act.
IV. rHE AI.L.E(iF.) UNFAIR ABOR PRA( II :S
A. The Setting
Respondent is engaged in the business of installing com-
mercial exhibits for customers at various locations. operat-
ing out of an office and warehouse in Santa Fe Springs.
California. Patricia Reiley and Raymond Moriarty are ac-
count executives, and John W. Roberts is the freight or
drayage manager: all are admitted supervisors and agents
of Respondent. Jack Sacco, the senior employee in point of
time of employment with Respondent. is the warehouse
general foreman, one of at least five foremen employed by
Respondent. During times material herein, Vern Sickler
was the Teamsters union steward. and Robert W'koff was
the assistant union steward. Richard Covert and Phillip
Blazier, (the Charging Parts herein), are forklift operators
employed by Respondent.
At all times material Respondent and Teamsters were
parties to a collective-bargaining agreement covering "all
truck drivers, packers, craters, warehousemen, loaders,
helpers and working foremen, order fillers, checkers and
warehouse foremen." 2 Respondent also has a contract with
Painters and Decorators Union Local 831, herein called
Decorators. The Teamsters employees load and unload
freight at the warehouse and deliver freight in crates to the
customer show sites. They utilize trucks and forklifts in the
process of carrying out their duties. The Decorator employ-
ees open the crates: install the display booth, carpets and
drapes: and set up the displays.
On an undisclosed date in August Teamsters business
representative Wise called Roberts by phone regarding two
grievances which had been filed against Respondent. Shop
steward Sickler had filed one because Roberts had been
doing unit work in the warehouse, and Wykoff had filed the
other, claiming that members of the Decorators were doing
Teamsters unit work. Wise testified without contradiction
that Roberts' response to the grievance was, "The God-
damn union, you can't do anything any more without the
union around," and that he would not consider the griev-
ances. The Sickler grievance was eventually resolved with
an award of backpay for I or 1-1 /2 days. On another undis-
closed date in August Wykoff reported to the Teamsters
Anaheim local the fact that an office employee was signing
freight bills and giving orders to Teamsters employees. Offi-
cials of the local came to the premises and talked to Rob-
erts, who stopped the office employee from doing the unit
work claimed by the Teamsters.
Art. II of G.C. Exh. 2.
B. (omplit Paragraphs 9 .nd )
Paragraphs 9 and 10 allege that on or about August 31
Reiley and Moriarty. respectively. threatened employees
with discharge or other reprisals for engaging in union or
other protected concerted activities.
T'he record discloses that Respondent was setting up a
show at the Anaheim Convention ('enter in the latter part
of August when Covert observed members of the Decora-
tors "unloading freight from the van line,''" work which the
Teamsters claimed fell within their work jurisdiction. ('o-
vert determined from the Decorators that the\ had been
told to do the work and reported the fact to Sickler who
was unloading a truck nearby. lie testified that Sickler got
down from his truck to talk to Roberts and to call the
Teamsters when Reiley came up "and told Vern to mind his
own business, it didn't pertain to him." While Covert testi-
fied. ''There was quite a hit of discussion going on there."
he did not recall any of it and went back to work. Sickler
placed a call to a Teamsters business representati e who
came to the center and talked to Roberts. Neither Sickler
nor Reiley testified: consequentl. the foregoing constitutes
all of the eidence in support of paragraph 9 of the con-
plaint. (ontrary to the position of the General (Counscl. this
evidence falls short of establishing bh a preponderance of
the evidence a threat of discharge or other reprisals attrib-
utable to Reile. Accordingly. I recommend dismissal of
paragraph 9 of the complaint.
Covert testified without contradiction that after he
jumped off the truck because of the foregoing incident he
and Moriarty had a conversation. His account was, "I told
him I thought it was a bunch of crap that the )ecorators
were doing the Teamsters' work, and he says, 'He, you
better get back up on our truck or you can be fired.' " At
this point Wvkoff walked by. and Covert asked him "can I
really be fired for making my point of view." Wvkoff ad-
vised him. "Well, don't take a chance on it," so Covert got
back on his truck. Moriarty did not testify. I conclude that
Moriarty's remark constituted a threat of discharge directed
at Covert because of his aggressive pursuance of a griev-
ance and therefore violated Section 8(a)( ) of the Act as
alleged in paragraph 10 of the complaint. See, for example.
Triangle Sheet Metal Works Division ?of P & F Industries,
Inc., et a. 237 NLRB 364, 370 (1978).
C. Complaint Paragraph 11
Paragraph I 11 alleges that on or about August 31 Roberts
informed a union business representative that an employee
was going to be discharged for engaging in union or other
protected concerted activities.
Wise testified that in late August he received a telephone
call from Wykoff and Sickler reporting that the Decorators
were doing Teamsters unit work at the Anaheim Conven-
tion Center. and that the Teamsters were ready to walk off
the job. Wise called Roberts and advised him that if he
wanted to avert a strike he had better adhere to the Team-
sters contract and stop the Decorators from doing Team-
sters unit work. According to Wise. Roberts "told me he
was going to 'fire Vern Sickler's ass .... Ie is a shop
steward . . . he is always interfering . . . I will fire his ass if
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is the last thing I do.' " Wise then cautioned him not to
threaten any of the Teamsters representatives, and that
Sickler and Wykoff had been doing their jobs in accordance
with the collective-bargaining agreement. Wise later told
Sickler of Roberts' threat.
The fact that the threat to fire Sickler was uttered by
Roberts to Wise rather than to Sickler himself does not
affect Respondent's liability for the threat. To paraphrase
trial examiner Owsley Vose, whose findings, conclusions.
and recommendations were adopted by the Board in Peoria
Dry Wall, Inc., 191 NLRB 434 at 440 (1971), "The natural
and reasonably forseeable consequence of [Roberts'] utter-
ing the threat to [Wise] was that [Wise, Sickler's] represent-
ative, would pass the threat along to [Sickler], as he did, and
[Roberts], therefore, must be presumed to have intended
this result. It also might reasonably be anticipated that
[Wise] would convey [Roberts'] threat to other laborers still
in the Respondent's employ, whom he represented." Rob-
erts' threat to Wise to "fire" Sickler for reporting a violation
of the collective-bargaining agreement, clearly a protected
concerted activity, constituted interference, restraint, and
coercion in violation of Section 8(a)( 1) of the Act.
D. Complaint Paragraph 12
Paragraph 12 alleges that in September Respondent,
through Sacco, threatened employees that Respondent
would subcontract their work and discharge them for en-
gaging in union or other protected concerted activities, that
from August through October he threatened to discharge
them for the same reason, and that in October he instructed
employees to stay away from their union representatives
and threatened to engage in reprisals against them if they
failed to do so.
The threshold question is whether Sacco is a supervisor.
The General Counsel contends that he is, and Respondent
contends that he is not.
Sacco is the senior employee in Respondent's warehouse
and consequently is designated the general foreman. As the
warehouse general foreman he works with the other men
loading and unloading freight, working at times alone and
at other times with up to 10 employees. While both Wykoff
and Blazier characterized Sacco as being in charge of ship-
ping and receiving, and that he told them what to do, Blai-
zer testified that Sacco was supposed to work along with the
other employees, and that they complained when he did
not. He also sometimes ignores Sacco's "comments." Re-
spondent does not utilize a timeclock; therefore, each em-
ployee keeps a record of his own time and the job he works
on, and Sacco verifies the timecards by initialling them at
the end of the day. Wykoff testified that Sacco could tell the
men to work overtime in order to complete a job, and if
they were short a man he could "call in the next man" but
was required to follow seniority in accordance with the con-
tract. Blazier testified that Sacco could authorize time off.
Examples of time off that he took were to go to court, for
appointments with a doctor. or to go home. At one point he
testified that Sacco had never told him he could not take
time off, and at another point he testified that Sacco had
refused to let him take time off. In either event it would
appear that Sacco exercises some independent authority
over time off.
Sacco has been a member of the Teamsters for 25 years,
and he has been a member of the Decorators for 5 years.
He is in the unit represented by the Teamsters and is cov-
ered by the contract between the Teamsters and Respon-
dent. He attends Teamsters meetings where matters to be
voted on are contracts and the election of officers. Hie has
never been advised that he had authority to hire, terminate.
or reprimand employees, nor has he ever exercised those
authorities. He lacks authority to discipline employees. nor
do they come to him with their problems. Teamsters do not
have regularly scheduled working hours. Instead, their
hours depend upon the season and the specific commercial
shows to which they are assigned. Roberts makes a daily
work schedule, designating the starting time, the number of
people in the crews, the trucks to he used, and the work to
be done. The jobs for the following day are posted in the
warehouse. Which employees work is determined "strictly
by the seniority list" in accordance with the contract. Sacco
relays the foregoing information to the men when they ei-
ther call in or report for work. He works with the other
employees loading and unloading freight at the warehouse.
His name is at the bottom of the seniority list for purposes
of working on the shows away from the warehouse. which
sometimes occurs. While Wykoff claimed that Sacco as-
signed overtime, it appears from the record that the starting
time and number of hours worked varies according to the
job, and it is customary to stay on the job until the work is
finished. Sacco lacks authority to transfer employees from
job to job; however. Roberts and the account executives
may do, and Sacco's role is to convey their decisions to the
men. If an employee wants to be switched from one job to
another, authority to do so must be obtained from Roberts.
There is an office in the warehouse which Sacco uses which
has two desks, a telephone. a table, and several chairs.
While Sacco may spend from 2 to 3 hours in there on a
busy day making and receiving phone calls and answering
questions regarding late shipments or those expected to
come in, the balance of the day is spent working in the
warehouse alongside the other men. The office, which has
two doors and a window, is also used by the other employ-
ees for making phone calls, eating lunch, and taking breaks.
While Sacco has a key to the warehouse, the six men with
the most seniority possess keys, and Wykoff had one for at
least part of 1978. While the rest of the crew receive time
and a half for Saturday work in accordance with the con-
tract, Sacco and another foreman. Arrevillaga, receive dou-
ble time for Saturday work. Sacco can utilize the services of
the shop steward and the contract grievance procedures if
he has a problem. If the seniority list is exhausted and addi-
tional help is still needed the foreman first calls Roberts for
additional men. If Roberts is not available the foreman
must refer to a list of casuals which the Company maintains
and "go down that list to call whoever was closest or who
could do the work for him." The casual list, a copy of which
each foreman has in his possession, is comprised of people
who have worked fbr Respondent before, together with the
names of a competitor's regular employees who may be out
of work temporarily.3
3 When work is slow Respondent's regular employees also work as casuals
for Respondent's competitors.
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GREYHOUND EXPOSITION SERVICES
There are certain factors which tend to negate and others
which tend to support the conclusion that Sacco is a super-
visor. Thus, while Roberts makes up the daily work sched-
ule, determines the starting time, number of employees and
equipment to be used, Sacco is responsible for making cer-
tain the work is done in accordance with Roberts' direc-
tions. In this regard, it is noted that Roberts is away from
the warehouse approximately 70 percent of the time, leav-
ing the warehouse employees without effective supervision
unless Sacco is a supervisor. While all employees, including
Sacco, are covered by the collective-bargaining agreement
Sacco, as general foreman, is paid at a higher rate than the
other unit employees and receives double the hourly rate
for Saturday work, whereas the other unit employees except
for Foreman Arrevillaga receive time and a half for Satur-
day work. Sacco's Saturday rate of pay is the result of an
agreement between him and Respondent and is not covered
by the collective-bargaining agreement. Further, it is undis-
puted that Sacco has independent authority to grant time
off to employees. Further, it is clear that he exercises in-
dependent judgment in selecting casual employees when a
need arises. Accordingly, it is found that Sacco responsibly
directs the work of other employees and is a supervisor
within the meaning of Section 2(1 1) of the Act.
Blazier testified that sometime after August. after he had
filed a grievance against Respondent with respect to the
Decorators doing Teamsters work, he had a conversation
with Sacco about the grievance. According to Blazier, Sac-
co made a disparaging remark about the Teamsters and
told him that he "ought to keep [his] nose out of it." and
that Blazier "didn't realize ... that contract time was com-
ing up and that the company could at any time sub our
work out and we would be without jobs and there wasn't a
Goddamned thing that we could do about it . . . that I
ought to stay away from the union, that it would just get me
in trouble. If I had problems. I ought to bring it to John
Roberts or to the office instead of going to the union over
it."
Blazier testified that on October 19, after he had filed
another grievance over not being paid. Sacco told him
"That I should stay away from Bob Wykoff, Vern Sickler,
Dick Covert and Charlie Wise because they were a bunch
of back-stabbing mother f-rs, and all they were going to
do was get in trouble with the company . . . that we were
sons-of-bitches, and they ought to get rid of any one of us.
and they will sooner or later."
Sacco testified that about 4 months ago. while he and
Blazier were working in the warehouse, they observed Wy-
koff, Covert, and Sickler talking outside in the driveway;
that he told Blazier to stay away from them and for the two
of them to continue working: and that he became upset
because the men had stopped working and said, "They
ought to fire every Goddamn one of you." He further testi-
fied that the statement that Respondent could subcontract
out the work and that "You guys keep screwing around, we
are all going to be looking for a job," was based on a com-
ment from a freight driver about a company that had done
that, and that Respondent's management never said it in-
tended to do so.
Contrary to Respondent's position that Sacco was only
expressing his personal opinion and that Blazier ignored his
comments, I find that Sacco's statements amounted to in-
terference, restraint, and coercion within the meaning of
Section 8(a)(1) of the Act.
CON(ClUSIoNS O() LAW'
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening employees with discharge or other re-
prisals. by informing a union business representative that
an employee was going to he discharged for engaging in
union or other protected concerted activities, by threaten-
ing to subcontract unit work and discharge employees, and
by instructing employees to stay away from their union rep-
resentatives Respondent has violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act as alleged in para-
graph 9 of the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act. I hereby issue the following recommended:
ORDER4
The Respondent, Greyhound Exposition Services, Santa
Fe Springs, California, its officers, agents, successors, and
assigns. shall:
I. Cease and desist from:
(a) Threatening employees with discharge or other repri-
sals, informing a union business representative that an em-
ployee is going to be discharged for engaging in union or
other protected concerted activities, threatening to subcon-
tract unit work and discharge employees. and instructing
employees to stay away from their union representatives.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed under the Act.
2. Take the following affirmative action which will effec-
tuate with purposes of the Act:
(a) Post at its place of business in Santa Fe Springs. Cali-
fornia, copies of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by Respon-
dent's authorized representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
4 In the event no exceptions are filed as provided b Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
I In the event that this Order is enforced by a Judgment of a tinited States
court of appeals, the words in the notice reading "Posted by Order of the
National Lahor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enfiorcing an Order of the National
Labor Relations Board"
209
I)DECISIONS OF NATIONAL ABOR RELATIONS BOARD
places. including all places where notices to employees are
customaril. posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced.
or covered b an other material.
(b) Notit} the Regional Director for Region 21. in writ-
ing, ithin 2() da s from the date of this Order. what steps
have been taken to comply herewith.
1I Is Ft Hi RI:R ORDHI)REI) that the complaint be, and it
hereb\ is. dismissed insofar as it alleges that Respondent
violated the Act otherwise than found herein.
APPENDIX
Notic To EMiPI.OYI.ES
Posltli) BY ORDER OF 1IHiL
NAII()oNA LABOR RELAIIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
give evidence. the National Labor Relations Board has
found that we violated the National Labor Relations Act.
and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purposes
of collective bargaining or other mutual aid or pro-
tection
To retrain from the exercise of any such activities.
WI-. WiLi Nor threaten you with discharge or other
reprisals fbr engaging in union or other protected con-
certed activities.
Wr WILL NOT inform your union representatives
that employees are going to be discharged for engaging
in union or other protected concerted activities.
WE WILll NOI threaten to subcontract out your work
and discharge you for engaging in union or other pro-
tected concerted activities.
WE WILL NOT instruct you to say away from your
union representatives.
WE WII.L N01 in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by the National Labor Relations Act.
GREYHOUND EXPOSITION SERVI(CES
210