P.I.E. Nationwide, Inc.

National Labor Relations Board - Board Decisions

May 13, 1987

283 N.L.R.B. 965 (N.L.R.B. 1987)

P.I.E. NATIONWIDE 965
P.I.E. Nationwide, Inc. and Charles William Anton-
opulos and Sidney Boonstra and Peter H. Ad-
vocaat and Wilbert A. Hofstra . Cases 7-CA-
25346, 7-CA-25358, 7-CA-25381, and 7-CA-
25559
13 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSO,N AND MEMBERS
JOHANSEN AND STEPHENS
On 23 January 1987 Administrative Law Judge
William F. Jacobs issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the ,Respondent filed an answering 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 briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the` complaint is dis-
missed. '
A. Bradley Howell, Esq., for the General Counsel.
Joseph A. Schwachter, Esq. (Littler, Mendelson, Fastiff and
Tichy), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. The
charges in the instant proceeding were filed by Charles
William Antonopulos (7-CA-25346) on 30 December
1985, Sidney Boonstra (7-CA-25358) on 6 January 1986,
Peter H. Advocaat (7-CA-25381) on 10 January 1986,
and Wilbert A. Hofstra (7-CA-25559) on 28 February
1986 (Charging Parties). The order consolidating cases,
consolidated amended complaint, and notice of hearing
issued 15 April 1986 alleging that P.I.E. Nationwide, Inc.
(Respondent or the Company) violated Section 8(a)(1) of
the National Labor Relations Act, by threatening the
Charging Parties with harassment by other employees
and with closure of the Grand Rapids, and Kalamazoo
terminals unless they agreed to participate in a proposed
employee stock investment plan and by coercing the
Charging Parties into joining the plan.
The case was tried before me on 20 and 21 May 1986
at Grand Rapids, Michigan. The parties were represent-
ed by counsel at the hearing and were afforded opportu-
nity to be heard and to present evidence and argument.
The General Counsel, and Respondent filed briefs. On
the entire record, my observation of the demeanor of the
witnesses , and after giving due consideration to the
briefs, I make the following 1
FINDINGS OF FACT
In 1984 Respondent lost $16 million. In 1985 through
September it was losing approximately $5 to $6 million
per month. In the accounting period September
1984/September 1985 the Company lost $50 million. At
the meeting in Atlanta in July 19852 top members of Re-
spondent's management met. At this meeting it was an-
nounced that I.U., Respondent's parent company, could
no longer justify putting money into Respondent; that
something had to be done about the Company's, financial
condition. Three options were considered: First, the
Company could continue to operate as it had and go out
of business by the end of the year; second, it could
downsize by selling certain portions of its business; and
third, it could launch an Employee Stock Ownership
Plan (ESOP). It was determined that the third option
was the best alternative; if organized properly, imple-
mentation of the ESOP program would result in a reduc-
tion in the Company's operating cost by $54 million.
This could be done, however, only if there were ][00-per-
cent participation in the ESOP program.
Subsequent to the Atlanta meeting, officials of Re-
spondent described the plan to the Union. The Union
gave the Company its blessing and advised Respondent's
management that it preferred to see efforts at stabiliza-
tion rather than closure.
In August, in Chicago, another meeting was held. This
one was attended by management personnel of the Com-
pany's 11th region. Basically, the same matters were dis-
cussed at the Chicago meeting as had been considered
earlier in Atlanta. Jack Shang, president and chief execu-
tive officer of the Company, and Brian Kulman, its vice
president of traffic described the Company's economic
plight to those present and advised them that, Respond-
ent'was on the brink of going out of business and had to
do something desperate to reduce operating costs. Those
present were then told about the ESOP plan and that its
implementation was a must; that 90-percent participation
by both management and rank-and-file employees would
be necessary to success while 70-percent participation
was necessary for SEC 'approval. The members of man-
agement from the various terminals were told that they
were to go back and relay what they had heard to the
employees at those terminals. Both the voluntary aspect
of the plan and the desperate financial plightof the Corn-
pany were to be relayed.
During the period following the Chicago meeting, the
various members of management at the terminals in the
Company's region 11 tried to sell the ESOP program to
the rank-and-file employees. At the Grand Rapids termi-
nal the sales manager,, Gordon Wolters, was concerned
because only about half'of the employees initially agreed
i The complaint alleges and ,the answer admits that the Board has ju-
risdiction and that the Union (International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America) is a labor organiza-
tion within the meaning of the Act
2 Hereinafter all dates are in 1985 unless otherwise indicated
283 NLRB No. 148
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to sign up. A meeting of all Grand Rapids employees
was scheduled.
On the morning of 30 September the meeting was
held. It was attended by 10 or 12 employees of the
Grand Rapids terminal, whether on duty or not. At the
beginning of the meeting, Gordon Wolters and Steve
Borkowski, the Grand Rapids terminal manager, ad-
dressed the employees briefly. They described to the em-
ployees the financial difficulties the Company was suffer-
ing and necessitated the implementation of the, ESOP
program. They stated that the plan was voluntary, but
they were concerned for their jobs. They told the em-
ployees that they were all in the situation together and if
the program did not succeed they, management, and
rank-and-file employees were all facing a loss of employ-
ment. They then introduced John Rogers, the Regional
Sales Director, who was visiting the Grand Rapids ter-
minal for the specific purpose of addressing the employ-
ees with regard to the importance of the ESOP program.
Rogers played a video tape for the employees, which
featured Jack Shang explaining the pros and cons of the
ESOP program. According to the taped presentation,
employees volunteering to participate in the ESOP pro-
gram would be required to give up 15 percent of their
pay in exchange for `stock in the Company. The purpose
of the ESOP was to afford financial relief to the Compa-
ny to enable it to continue to operate. Shang urged the
employees to take the 15-percent cut and to sign up for
the program. He noted that management personnel as
well as rank-and-file employees would be participating;
that this was necessary because the Company was losing
money. He said that although participation was volun-
tary, 90-percent participation by everyone was necessary
for success.
Following the Shang presentation Rogers addressed
the employees. He told them that the ESOP program
was an absolute must; that the Company could not go, on
the way it was going; that as Jack Shang had said in the
video presentation, the Company had to have 90-percent
participation but would like 100 percent; that it, was a
time when everybody had to reach back and not only
contribute, to work for the Company, but to protect
everybody's job. He reiterated what Shang had said in
the earlier presentation that the Company was losing
large amounts of money and that the reason the Compa-
iny was introducing the ESOP was to turn the Company
around financially, but that its future was uncertain at
that time.
In addition to the various speeches by management
personnel and the video presentation, several" pieces of
written material were distributed. There was a prospec-
tus that noted that participation was voluntary with a 4
October deadline, 3 a pamphlet, describing the Stock ' In-
vestment Plan, a beneficiary election form, a question
hand answer pamphlet, and' an election to participate
form. Employees were told 'to take the application forms,
read the material, and think about it. Each employee
who received the election to participate form had his
name already filled in at the top. Charging Parties Boon-
istra and Hofstra wrote "no" on their applications,' but
a The deadline was established by the SEC
did not turn' them in' at the meeting. Charging Parties
Antonopulos--and Advocaat wrote>"no" on their' applica-
tion forms and -turned them back to 'management after
the meeting.
After the meeting and after Antonopulos returned his
application to Borkowski, the latter engaged him in con-
versation. Borkowski said, "So you think the plan is a
bunch of bullshit!" Antonopulos replied that he did not
feel that way at all; that he just did not feel that he could
afford to, commit 15 percent of his wages over 5 years
and raise a family of four children. Borkowski then told
Antonopulos that if the Company folded, he, Antonopu-
Ios, would be, personally responsible for over 11,000
jobs.4 Borkoski' asked Antonopulos if he could live
with that.
About noon on 30 September Borkowski engaged Ad-
vocaat in conversation about the ESOP program. Bor-
kowski asked' Advocaat what it would take to change his
mind. Advocaat replied that he would be willing. to par-
ticipate, but that his financial situation at the present
made it impractical.
On the evening of 30 September, Hofstra turned in his
application form with the work "no" on it. Hofstra ex-
plained that he did not want to participate because he
was anticipating retiring in the near future. Borkowski
said that he did not like the looks of the "no" on Hof-
stra's application and added that he wished that Hofstra
would reconsider. Hofstra replied that he felt that he
would not be able to do much good for the short time
that he had left working. Borkowski said that the Com-
pany would like to have Hofstra as part of the team; that
he would like to have Hofstra sign up.
The week of 30 September-4 October was a very
emotional week for both rank-and-file employees and for
management personnel. There was a lot of talk between
the two groups about the ESOP and also among the
rank-and-file employees themselves. Debate was heated
about the pros and cons of the plan. On 1 October Bor-
kowski called Boonstra into his office and asked him if
he had made up his mind yet as far as the ESOP pro-
gram was concerned. Boonstra replied that he had not.
The same day, about noon, Borkowski engaged Advo-
caat in conversation. Borkowski asked Advocaat if he
had changed his mind about participating in the ESOP
program.'Advocaat replied in the negative, adding that it
was impractical for him to participate. He suggested that
perhaps he could sign up at a later date, like May 1986.
Borkowski stated that that would be impossible, that
Friday, 4' October was the deadline.
About '5:30 or 6 p.m. on 1 October, Advocaat had 'a
conversation with two other employees, Dick Christian-
son and Bob Pearson, in the drivers' room.' He was asked
by' one or both of 'them why he had not signed up for
the ESOP program'. Advocaat replied that he thought
that' the 'program was supposed to be voluntary. The
reply was that the program, was voluntary, but that it
was like- the army: "You don't volunteer `no," you only
volunteer `yes."' An argument followed, there was-some
4 Borkowski denied making this statement but admitted telling Antono-
pulos that he would be partially responsible I credit Antonopulos' ver-
sion.
P.I.E. NATIONWIDE 967
name-calling, and the discussion became heated..Advo-
caat was told that if he thought he could get another job,
why didn 't he go find one and make room for others
who wanted to work. Advocaat replied , "Don't steal
from me! Shut the place down then ." His adversaries an-
swered , "That would be just fine . Then we would all be
out of a, job ." Advocaat slammed the door angrily and
left. -
On the evening of 1 October , a conversation occurred
in the drivers ' room between Wolters and Advocaat.
Wolters told Advocaat to give serious consideration to
signing up with the ESOP plan . He stressed that it was
very important for-him to do so, commenting that Advo-
caat was considered a leader among the employees, and
urged him to show leadership by signing up. Once again
Advocaat stated that it was impractical for him to sign
up at that time . Wolters said, "Well, you know they are
going to shut the place down , and I am 52 years old, and
damn it, I am too old to go looking for other work."5
On 1 or 2 . October Borkowski approached , Antonopu-
los while at work . and asked him if he had thought any-
more about the ESOP . Antonopulos replied that he had
been looking through the prospectus , but still could not
see how he could afford the plan without refinancing his
house . He added that interest rates and closing costs
were too high. Borkowski said that Antonopulos might
have to sell his property up North.
On 2 October another conversation took place in Bor-
kowski 's office between Advocaat and Borkowski. Bor-
kowski asked Advocaat if he had changed his mind and
was ready to sign up for the stock plan . Advocaat re-
plied negatively stating that he did not intend to change
his mind. Borkowski reminded Advocaat that if there
was not a high enough participation, there was a possi-
bility that the terminal would be shut down.6 Advocaat
then advised Borkowski that he had been in a heated ar-
gument the night before in the driver 's room, referring
to his discussion with Christianson and Pearson about the
ESOP . He added that he did not appreciate the treat;
meat he had been . getting from fellow employees.. Bor-
kowski stated that it wag a: very emotional situation; that
there were a lot of people concerned for their jobs. He
added that if Advocaat did not sign up for the ESOP
program, he could expect more of the same.
On the afternoon of 2 October, a conversation took
place in -the drivers ' room. between Borkowski and em-
ployee Edward Klinge . Borkowski asked Klinge if he
was' ready to sign his ESOP application . Klinge replied
that he was not; that he would do some thinking about
it. Borkowski said, "We sure could use your help on this.
We need it." Klinge then asked how they were doing at
the Kalamazoo terminal . Borkowski answered that they
did not yet have anyone signed up there. When Klinge
asked what they were going to do there , Borkowski re-
plied that if the Kalamazoo employees did not sign up to
participate in the ESOP , the Company would probably
close the terminal and run it out of Grand Rapids.
5 Wolters ' testified that he made remarks concerning these matters
during a meeting in the breakroom on 2 October
6 To the extent that Borkowski 's testimony appears to be in conflict
with that of Advocaat concerning this conversation , I credit Advocaat.
Oil the evening of 2 October Borkowski again asked
Advocaat if he had reconsidered and was willing to sign
up for the ESOP . He added that he felt that Advocaat
was one of the leaders of the men and that it was of
paramount importance that he show that, leadership by
signing up and preserving the Company.
On 2 or 3 October Borkowski invited Antonopulos
into his office and again asked him if he had changed his
mind about participating in the stock plan . Antonopulos
replied that he, had not; that he could not afford it. Bor-
kowski stated that it would be rough on everybody fi-
nancially ; that he, himself, was trying to think of ways to
earn money around the house to make up the difference.
Antonopulos asked Borkowski if he knew anyone at the
terminal who was participating in the plan and who was
raising a large family . Borkowski supplied the name of
another employee.
According to the testimony of employee Sid Boonstra,
on the morning of 3 October a meeting was held at the
Grand Rapids terminal . Rogers, Wolters,, and Borkowski
were present as were the drivers. Rogers told those
present that none of the employees at the Kalamazoo ter-
minal had signed no for ESOP and because of that the
Company would probably close that terminal and run its
business out of the Grand Rapids terminal . ? Employee
Robert Pearson testified, "I do not know if it was at that
meeting or not but I do remember some discussion on
Kalamazoo . That [it] could possibly be serviced out of
Grand Rapids." Pearson could not recall if he heard this
from Rogers or from one of the other employees.
Also on 3 October, in an incident that occurred in the
drivers' room in the presence of several drivers, Wolters
addressed Sid Boonstra .$ He said that he probably would
regret saying it, but was going to say it anyway. He then
reminded Boonstra of an earlier time when Boonstra had
been ill, when Wolters and other employees had come to
his' aid. He then said that he and the others now needed
Boonstra's help'. Boonstra said that the'situations were
not the same . Wolters stated that he, Boonstra, would be
leaving for the Netherlands in a, couple of weeks to start
up an export business. He suggested that Boonstra "quit
being the leader [of opposition to,the ESOP] and do
them all a favor"; quit right then , and "get the hell out"
if he did not like the Company. Wolters, by the accounts
of witnesses, appeared 'very- sincere and had tears in his
eyes. To those present the impression was that Wolters
was afraid of losing his job. The tension at this meeting
was great. Half an hour later Wolters apologized for his
earlier remarks.
Borkoski, that day, called Boonstra into his office and
asked him if he had made up his mind- on the ESOP pro-
gram . Boonstra replied that he had and that it was "No!"
Borkowski stated that that would be very detrimental to
7 Rogers denied making this statement . I credit Boonstra . Employee
DeGroot's testimony on, the subject was inconclusive
$, Wolters basically admitted the statements attributed to him by Boon-
stra, but stated that they were made at a different time at a group meet-
ing.
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Company and added that they probably would- lose
their jobs.9
Also on 3 October employees Antonopulos and Hof-
stra received letters from Borkowski dated 2 October
stating:
Dear Employee;
Re: Ryder/P.I.E. Stock Investment Plan
We have one more day to enlist your participa-
tion in the Stock Investment Plan.
Our records indicate that you have not signed up
to participate. I know this is a serious matter that
you and your family must consider carefully. I
would urge you to decide promptly. The future of
your Company and your job depends on the active
support of this program by everyone involved.
A majority of the employees have signed cards
and more are participating every day. But we need
about 1200 more cards signed before midnight on
-Friday. Every Participant Counts.
,We all need to pull together and make this
happen now, Help your fellow employees by sign-
ing up today.
Sincerely yours,
/s/Steve Borkowski
Terminal Manager
On the evening of 3 October, Klinge, after giving seri-
ous consideration to the conversation between Boonstra
and Wolters that had occurred several hours earlier,
called Wolters at his home and advised him that he in-
tended to sign his application to participate in the ESOP
program the following afternoon. -
Meanwhile, the same evening, Borkowski again called
Advocaat into his office and asked him if he changed his
mind and was ready to participate in the ESOP plan.
Advocaat replied that he had not changed his mind and
,did not foresee himself changing it. While he was either
on his way into or out of Borkowski's office, on this oc-
casion, Wolters took the opportunity to remind him of
the great importance of participating in the ,plan because
of the financial condition of the Company. He added that
(without sufficient participation) there would probably
be some closings, if not of the entire system, then per-
haps of individual terminals. '
Also on the evening of 3 October, Borkowski called
Hofstra at his home and told him to reconsider and join
the plan. Hofstra replied that he did not feel that he
should because he would need the money for his antici-
pated retirement and he was only working 2 or 3 days a
week at the time. Borkowski stated that he sure would
like to have Hofstra join and be a part of the plan.
Later in the evening of 3 October, Advocaat had
lengthy conversations on the telephone with his family
about his possible participation in the ESOP program. In
one conversation with his oldest son, he was advised to
sign up to avoid harassment and in order to protect his
9 Borkowski admitted stating that if the Company did not get the re-
quired amount of participation in the ESOP plan, both Boonstra and he
stood possibly to lose their jobs
job while he looked for another one. He decided to-sign
up the following day and did so. '
At 8 a.m. on 4 October, a meeting was called at the
Grand Rapids terminal. Present for management were
Rogers, Wolters, and Borkowski. Drivers were in attend-
ance. Rogers read a progress report on the percentage of
participation in the ESOP program at various terminals.
He noted that Kalamazoo had signed up 100 percent
while certain other stations had signed up. 85 percent.
Shortly after the meeting, about 9:30' a.m., Boonstra and
Borkowski discussed the ESOP issue. Boonstra com-
mented that he had never experienced so much pressure
as during that week. Borkowski offered that he had been
under a lot of pressure himself the day before. Boonstra
assumed that Borkowski meant that his pressure came
from the men.' He noticed a tear trickle down-from Bor-
kowski's eye as he, Boonstra, turned away to go to
work. 'Borkowski said, "Well, I hope you are on our
side," and added that if the employees did not sign-up
for the plan, both Boonstra and Borkowski would, lose
their jobs.
Also, shortly after the 8 a.m. meeting Hofstra was
called into the office. John Rogers was present, later to
be joined by Wolters and Borkowski. Rogers asked Hof-
stra how old he was when the Company hired him. Hof-
stra replied that he had been hired in 1981 when he was
49 years old. Rogers opined that it was awfully good of
the Company to give Hofstra a job at that age, then
added, "You know, if you don't join up [in the ESOP],
the rest of the employees are going to treat you like shit.
They are going to shun you and not talk to you." 10
Wolters said that he would like Hofstra to sign up as a
favor to him. Borkowski then added that he wished that
Hofstra would sign because he wanted him to be a
member of the team, to help the Company out so that it
could make a go of it. Rogers then went to the telex and
read something off a message about an employee in Chi-
cago who said he was planning to retire in January,
wished Rogers all the luck in the world, was behind
Rogers all the way, and was going to sign up for the
program. Hofstra, who felt that if he did not sign up, the
Company would go under, signed a few minutes later. ,
Later in the morning of 4 October, Borkowski and
Klinge had a conversation in the drivers' room about the
ESOP. Klinge told Borkowski, that he was not ,ready', to
sign, Borkowski, replied, "We need your help bad, and it
is getting close to the deadline." The deadline was, in
fact, that day. That afternoon Klinge signed the applica-
tion to participate in the ESOP, based on his witnessing
of the Boonstra/Wolters conversation of the day before.
10 Rogers testified how be tried to convince Hofstra that although the
latter would soon be retiring and would not need the ESOP program, the
other employees would still need it to keep their jobs When Hofstra of-
fered to sign ,up for the ESOP program in return for a guaranteed 5-day
week, Rogers stated that he could not'do so because of bargaining rules.
This description of the conversation is credited. However, Rogers denied
telling Hostra that the rest of the employees would shun him if he did
not sign up for the ESOP program With regard to this statement, I
credit Hofstra Although Wolters and Borkowski testified that Rogers did
not say anything to Hofstra, during this conversation, about the attitude
of other employees, it is clear that they were not present during the
entire conversation and could not have heard everything that was said
(See Tr. vol II, p. 15 )
P.I.E. NATIONWIDE 969
About 4 p.m. on 4 October, Antonopulos punched in
and was shortly thereafter- called into Borkowski's office.
Borkowski unfolded a computer printout and showed it
to Antonopulos explaining that the printout indicated the
terminals throughout the country that had turned in 100-
percent participation in the ESOP program. He stated
that Grand Rapids had achieved only 90-percent partici-
pation and had to do better. Antonopulos asked Bor-
kowski if he was trying to imply that if Grand Rapids
did not turn in 100-percent participation the Company
would close that terminal. Borkowski replied, "I don't
know, they might," and added that, at that time, only
Antonopulos and Mike Victor had not agreed to partici-
pate in the ESOP program and that Victor was being
unreasonable. Borkowski then stated that he did not
mean it to be a threat; however, it would be rough, for
Antonopulos to work alongside employees . who had
joined the plan; that it could get ugly; and that he had
already seen it.11 Antonopulos asked if it would be pos-
sible to sign up at some future date but Borkowski said
that the signatures would have to be in by that weekend.
That evening, about 6 p.m., Christianson came into the
drivers' room during Antonopulos' break and asked if he
had signed up. When Antonopulos replied that he had
not, Christianson said that he had no respect for anyone
who had not signed up,and that as far as he was con-
cerned the Company would be better off as soon as Mike
Victor and Antonopulos were gone. He added that he
would be watching for Antonopulos every chance that
he got.
On the evening of 4 October, Hofstra and Antonopu-
los signed up for participation in the ESOP program.
Boonstra.also signed his application on 4 October and re-
turned it to John Rogers.
The Respondent's terminals -maintain a telex system for
business purposes. They are not to be used for personal
messages and at the Grand Rapids terminal rank-and-file
unit personnel are-not permitted to use the telex.
During the week of 29 September through 4 October,
a large number of telex messages were received at the
Grand Rapids terminal, sent from other' terminals, asking
people to sign up for the ESOP plan. A few came in
early in the week, many more by 3 and 4 October. After
receipt of these telex messages, Borkowski and perhaps
other members of management posted a number ,of them
on the bulletin board next to the timeclock where the
employees checked in and placed others, on the table in
the drivers' room where the drivers hung up their coats,
had lunch, and took their breaks.
Charles Antonopulos testified that he saw a number of
these telex messages on 2, 3, and 4 October. One such
message referred to the low percentage of participation
in the ESOP program at Grand Rapids and stated: "We
vote to close." Antonopulos did not notice, who had
signed this telex message. He saw another that read:
"What is wrong with you employees who have not
signed up for the plan? Don't you know jobs are hard to
11 Borkowski admitted telling Antonopulos that he could expect some
friction or disagreements if he did not sign up for the plan but denied
using the terminology ascribed to him by Antonopulos I credit Antono-
pulos.
come by?" Still another that Antonopulos testified to
seeing read: "85 percent of something is better than 100
percent of nothing."
Boonstra credibly testified to seeing telex messages on
the table in the drivers' room, one of which read,
"Grand Rapids had 43 percent. We vote to close." 12
Others he saw read, "Please sign up for this plan. I need
my job." Boonstra testified that the only other times that
he noticed telex messages in the drivers' room was when
the terminal received some congratulatory message from
management' concerning how well the terminal was
doing.
Advocaat testified to,, seeing one telex message posted,
which was an ESOP update listing the terminals in the
region and showing the number and percentage of em-
ployees who had signed up for the ESOP program. This
message, also said that if certain terminals (lid not show a
high enough percentage, some terminals could be closed
down, especially end-of-the-line terminals. Grand
Rapids" is an end-of-the-line terminal. Advocaat saw
this message on 3 October. Advocaat saw other messages
that read, "Please sign up for the plan and save our
jobs."
After catching sight of these telex messages, Advocaat
called the 800 number provided for employees who had
questions concerning the ESOP program. He asked the
individual who answered the cal114 if the information
contained in the telex was true.-He was told that the ma-
chinery was, in place to close down the system, that par-
ticipation was not high enough.
Management, personnel testified concerning the telex
messages. Borkowski agreed that normally rank-and-file
office 'employees did not use the telex but stated that
they did so occasionally. He admitted that regardless of
who had sent the messages, management or nonmanage-,
ment, it was he who placed the telex messages on the
table in the drivers' room and posted them, or some of
them, on the, bulletin board. Borkowski testified that he
did this in order to show the drivers what the extent of
participation was at other terminals inasmuch as he had
'been asked questions on the subject by various employ-
ees.
Rogers testified that the various terminals were using
the telex messages to campaign on behalf' of the ESOP
program but he did not personally know who was send-
ing the messages. He testified that the regional manager
eventually sent out a message himself stating, that the
ESOP messages must stop. Before the messages were
stopped, however, during that week, the region,was up-
dated twice a day, once at noon and once at 6 p.m.
These updates showed how many people were employed
at each terminal in the region, how many of them had
signed up for the ESOP program, and what percentage
of employees had signed up. Rogers could not recall
12 Boonstra testified that he did not see who signed this message or did
not recognize the signature
13 Rogers testified that he could recall no such message and that none
could have issued from the regional office. However, Rogers also testi-
fied that he did not see the telex messages in the breakroom I credit Ad-
vocaat that he did, indeed, see such a message and that it probably origi-
nated from outside Grand Rapids.
14 This person was unidentified.
970 DECISIONS OF THE NATIONAL LA13OR RELATIONS BOARD
seeing the message concerning end-of-the-line terminals
but admitted that,- he had been told'at the time` that one
existed. Rogers denied that there had been any messages
concerning the, closing of terminals if participation was
not great enough.' 5` On the other hand, he also testified
that he did not see but did hear about the messages con-
cerning- Grand ^ Rapids having only 43-percent participa-
tion, "We vote to close."
`Gordon Wolters testified to seeing 100 to 150 telex
messages-on the table in, the drivers' room, but saw none
concerning end-of-the-line terminals. He did recall seeing
one that mentioned a low percentage of participation at
Grand Rapids, which was signed by someone other than
a managerial person. Wolters testified that rank-and-file
employees have access to the telex equipment. He did
not take the message seriously. 16-
, Like the- other members of management, Borkowski
denied that he ever saw the end-of-the-line telex message
concerning which Advocaat testified. He also could- not
recall such a message being mentioned by any of the
drivers.
Analysis and Conclusion
There is no dispute that Respondent in 1984 and 1985
was in dire financial difficulty and that the planned im-
plementation of an. ESOP plan was the only alternative
to closing down some of its terminals or, going out of
business altogether. After obtaining the agreement of the
Union, Respondent's top management' told its regional
officers to relay to their terminal employees the compa-
ny's financial condition and the need for 100 percent par-
ticipation in the ESOP program.
At the September 30 meeting at the Grand Rapids ter-
minal , management emphasized to the rank-and-file 'em-
ployees that if the ESOP program did not succeed, both
management '.'personnel and, rank-and-file employees
would be facing loss of employment. Management ex-
plained at this meeting that the ESOP program required
,all management and rank-and-file personnel to sacrifice
15 percent of their salary or wages in exchange for stock
in the-Company and that this would enable the Company
to continue to operate. To succeed, it was stated, 90-per-
cent participation was necessary;
Subsequent to this initial meeting at the Grand Rapids
terminal other meetings followed. Sometimes these meet-
ings were attended, by several members of management
and a number of drivers and sometimes these meetings
took the - form , of one-on-one confrontations. It was
during these subsequent meetings where, the complaint
alleges, incidents of 8(a)(1) threats occurred, which re-
sulted in. the Charging Parties being coerced into joining
the stock plan.,
Thus, in the consolidated amended complaint, para-
graph.10 alleges that Steve Borkowski, on 2 October,
threatened an employee (Advocaat) with continued har-
assment by other employees if he refused to participate
ie In particular , Rogers denied that the regional offices have authority
to close or even recommend the closing of terminals This fact does not,
however, preclude the possibility that such a message was, nevertheless,
received.
IB Wolters testified that although he was initially angered by this mes-
sage, he and certain rank-and-file employees later laughed about it
`in'the Stock-Investment Plan. In my estimation, howev-
er, there was no threat involved in this incident. Both
participants were aware that emotions were high among
those employees who, were in 'favor of the -ESOP pro-
gram -and those who'were against it. Indeed, Advocaat
had just had an, argument with Christianson and Pearson
-about,the ESOP program the night before and it was his
reporting of this argument to Borkowski-that elicited the
latter's remarks that the situation''was an emotional one;
that there were a lot of people concerned for their jobs;
and that if Advocaat did not sign up' for the ESOP pro-
gram, he could expect more of the same.
In my opinion, Borkowski's remarks 'were not meant
as a threat but an expression of a well `founded `opinion
based on his observation of the conditions around him as
well as on Advocaat's report of the incident that had oc-
curred the night before. -Such expressed' opinions by su-
pervisors concerning possible harassment of one employ-
ee by fellow employee's', taking opposite positions on
labor-related problems have' not been found to be viola-
tive of the Act where' there 'is no evidence of involve-
ment by 'the supervisor in, the harassment or any ratifica-
tion or adoption of the harassing acts of rank-and-file
employees by an employer or its supervisors.17
Paragraph 15 of the complaint contains a similar alle-
gation, namely that Borkowski, 'Wolters, and Rogers
threatened employees (Antonopulos and Hofstra) with
harassment by other employees if they refused to partici-
pate in the Stock Investment Plan. Again, I find Rogers'
statement to Hofstra and Borkowski's statement to An-
tonopulos concerning the attitude of other employees to-
wards them if they should fail to sign up for ESOP
merely 'expressions of their opinions; predictions rather
than threats, and not violative of the Act.'8
Paragraphs 11 through 14 contain-allegations of threats
to close terminals if enough employees employed'at these
terminals, did not agree to-participate in the ESOP pro-
gram . Paragraph II alleges that Borkowski and Wolters
made such threats concerning the Grand Rapids terminal
on 2 October- to Advocaat. The record indicates, that
Borkowski, told Advocaat on that date that if there was
not a high 'enough - participation in the ESOP program,
there was a possibility that the Grand Rapids terminal
would be shut down: The record also indicates that Bor-
kowski also told Klinge on that date that if -the Kalama-
zoo terminal employees did not sign ' up to -participate ^ in
the ESOP program, the Company would probably close
the terminal and run it out of Grand Rapids. '
Paragraph 12 alleges that Respondent posted notices in
the drivers' room threatening closure - of the Grand
Rapids terminal if the employees refused to participate in
the Stock Investment 'Plan. The- record indicates that `a
large number of telex messages were received at, the
Grand Rapids terminal during the first week of October.
A number of =these telex messages, all having to do with
the ESOP program, were posted or placed on the table
located in the drivers' room by management personnel.
I I Thomson Newspapers, 234 NLRB 649 (1978); Purolator Products, 270
NLRB 694, 712-713 (1984); Neo-Life Co. of America, 273 NLRB 72, 73
(1984).
18 Ibid.
P.I.E. NATIONWIDE 971
One such message referred to the low percentage of par-
ticipation of Grand Rapids employees and stated: "We
vote to close." Another message, seen posted on 3 Octo-
ber, stated that if certain terminals did not show a high
enough participation, that some terminals could be
closed down, especially end-of-the-line terminals. When
Advocaat called the 800 telephone number listed on the
SIP19 prospectus and asked if the posted message was
true, he was told that the machinery was in place to
close down the system, that participation was not high
enough. I conclude that regardless of who sent these
messages, management was responsible for bringing them
to the attention of rank-and-file employees.
Paragraph 13 alleges that John Rogers, on 3 October,
threatened employees with the closure of the Kalamazoo
terminal if enough employees at the Kalamazoo terminal
refused to participate in the Stock Investment Plan.
Record evidence indicates that Rogers told employees at
a group meeting that none of the employees at the Kala-
mazoo terminal had signed up for the ESOP program
and that the Company would probably close that termi-
nal and run its business out of the Grand Rapids termi-
nal.
As noted supra, while Advocaat was either on the
way into or out of Borkowski's office, on the evening of
3 October, Wolters told him that (without sufficient par-
ticipation) there would probably be some closings, if not
of the .entire system, then, 'perhaps, of individual termi-
nals. Although paragraph 13 of the complaint does not
mention this alleged threat, paragraph 11 alleges that
Wolters made this threat on 2 October. I find that the
statement was made on 3 October.
Paragraph 14 of the complaint alleges that Borkowski,
on 4 October, threatened an employee (Antonopulos)
with closure of the Grand Rapids terminal if he did not
participate in the Stock Investment Plan. The record re-
flects that an that day Borkowski, in answer to Antono-
pulos' question about the possible closure of the Grand
Rapids terminal if there were not 100-percent participa-
tion in the ESOP program, replied, "I don't know, they
might."
Though paragraphs 11 through 14 allege that Re-
spondent threatened closure of terminals unless the alleg-
edly threatened employees joined the ESOP program, I
do not consider the statement made to be threats at all.
Given the context in which the statements were made, I
find them merely forecasts of things to come based on
the reality of the -situation. Thus, it is clear that the Com-
pany was faced with a financial crisis that allowed it just
so many options: First, to go out of business; second, to
reduce operations; third,, to implement a successful
ESOP program. The Company chose the implementation
of the ESOP program as its course of action.
To be successful the ESOP program would require the
participation of 90 to 100 percent of all personnel, both
management and rank-and-file. If the ESOP program
failed due to lack of participation, the result would have
to be one of the other two alternatives. Managerial per-
sonnel did their best to explain the situation to all em-
ployees including the Charging Parties by advising them
19 Stock Investment Plan.
of the critical nature of the problem. In short, they pre-
dicted that unless everyone was willing to give up 15
percent of his salary or wages toward stock investments
to make the ESOP program a success, they would all be
out of work. Through some verbal, arm-twisting, coop-
eration was acheived and all the Charging Parties agreed
to join the program. In some cases the Charging Parties
and other employees agreed to sign up for ESOP be-
cause of peer pressure and fear for personal safety, in
other cases because they actually feared that the entire
system or their terminal would close down if they did
not'participate in the program, and in still other cases be-
cause they were sympathetic towards the expressed con-
cern of others that they might lose their jobs. For what-
ever reason the Charging Parties signed, it was not be-
cause of any activity on the part of management that
could remotely be considered in violation of Section
8(a)(1) of the Act for the statements made by managerial
personnel concerning ,closure were not made as"threats
of retaliation but as forecasts of the consequences of the
failure of employees to participate in the program de-
signed to save the Company and the jobs of all con-
cerned.
In a case20 that clearly is not on all fours with the in-
stant case, but that is, nevertheless, instructively parallel,
the Board found no violation with respect to the compa-
rable portions of that case. Thus,, in the Raskin case, as
here, the employer was faced with somewhat sudden and
acute financial setbacks that required relatively immedi-
ate operational changes. Unlike Respondent herein,
Raskin closed down its operation rather than first ap-
proach the union or its employees to discuss alternatives
to closure. Shortly after closure, however, Raskin ad-
vised the union that it would be able to reopen its plant
if it obtained certain concessions from the employees in
the unit represented by the union. The union refused the
employer's overtures stating that it would not be willing
to settle for less than that for which the contract provid-
ed. As noted supra, in the instant case the Union agreed
to the Company's obtaining concessions from the unit
employees in order to stay in business.
Despite the Union's objections in the Raskin case, the
employer in that case went to the employees directly and
offered an ESOP plan whereby the employees would
become owners of the company in return for giving up
certain wages and fringe benefits to which they were en-
titled under the existing contract. Raskin told the em-
ployees that if they accepted the Respondent's proposal,
it would reopen the plant under somewhat changed busi-
ness conditions,21 but if they refused it would stay
closed or would sell the plant to a third party.
In the instant case, as noted, the Respondent told the
employees that if they accepted the ESOP proposal the
Company would continue in business but if they refused
the proposal, the entire system or certain terminals
would close. Thus, in the Raskin case the employer
"promised" employees that the plant would be reopened
if there were contract concessions while in the instant
20 Raskin Packing Co, 246 NLRB 78 (1979)
21 Raskin, previously a wholesale meat packing company, would there-
after reopen as a custom meat packer
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case the Employer "threatened" employees that the plant
would be closed if there were no contract concessions.
One situation is the obverse of the other.
In the Raskin case the Board agreed with the reason-
ing of the administrative law judge that the respondent
did not violate' Section 8(a)(1) of the Act by these discus-
sions between management and its employees. If there
were no violations in the Raskin case, I can find no basis
for fmding a violation here.
Having found that the allegations of threats are with-
out merit, I consequently find that the Charging Parties
were not coerced into joining the Stock Investment Plan
and shall recommend dismissal of the complaint.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America-is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent has not violated Section 8(a)(1) of the
Act. -
On the basis- of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, and pur-
suant to Section 10(c) of the Act. I issue `the following
recommended22
ORDER
The complaint is. dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent, P.I.E. Nationwide, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
22 If no exceptions are filed as provided by Sec. 102:46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102,48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.