Pony Express Courier Corp.

National Labor Relations Board - Board Decisions

May 5, 1987

283 N.L.R.B. 868 (N.L.R.B. 1987)

868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pony Express Courier Corp . and Phillip Nye. Case
4-CA-15151
5 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 December 1985 Administrative Law
Judge Walter H. Maloney Jr. issued the attached
decision. The Respondent filed exceptions and a
supporting brief; and the General Counsel filed
cross-exceptions and a supporting and 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
as modified. a
We agree with the judge that Branch Manager
Pentheny restrained and coerced employee William
Daros, in violation of Section 8(a)(1) of the Act.
Pentheny invited Daros, a union adherent who had
solicited other employees to sign authorization
cards, for a cup of coffee at a restaurant near the
plant. What began as a friendly chat soon took an
ominous turn when Pentheny banged his fist on the
table and asked Daros, "Why are you doing this to
me?" Then he called Daros a "sneak" and a
"snake." Daros responded that he was trying to
better himself. Although Pentheny did not identify
Daros' union activity expressly as the source of his
irritation, the circumstances, including the absence
of 'any other identifiable cause for his rancor, rea-
sonably led Daros to believe that it was. Further,
the. total effect of these outbursts could hardly
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
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 F2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
As we agree with the judge that the Respondent unlawfully solicited
grievances when Branch Manager Raucci spoke to employees at a Satur-
day morning meeting soon after he took over as branch manager, we find
it unnecessary to pass on the judge's cumulative finding that Regional
Manager O'Neal also unlawfully solicited grievances.
2 The General Counsel excepts to the judge's recommended Order to
the extent that it does not include a visitatonal clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure under the supervision of
the United States court of appeals enforcing this Order Under the cir-
cumstances of this case , we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel's request.
We further find that the unfair labor practices committed here do not
warrant a broad cease-and-desist order under Hickmott Foods, 242 NLRB
1357 (1979) We therefore shall narrow the judge's recommended Order.
have-failed to be.ahreatening to the,employee. In
addition to the coercive interrogation concerning
the reason for Daros'- union activity, we find,. in
agreement with the judge, that Pentheny's remarks
reasonably tended to create the impression that
Daros' activities, which were not shown to have
been open and notorious, had been under surveil-
lance.
We do not find, however, that an additional, co-
ercive interrogation occurred when Supervisor
Castoria asked employee Morrison whether he had
been approached by anyone regarding unions.
Morrison answered that he had not been ap-
proached personally, but had received a union card
(which had been mailed to him for signature) and
that he had overheard rumors about unions. Nei-
ther Castoria nor Branch Manager Raucci, who
was also present, followed up this response, and
the conversation just ended. We are unable to find
that the totality of circumstances added up to a
reasonable tendency to restrain or coerce. Sunny-
vale Medical Clinic, 277 NLRB 1217 (1985); Ross-
more House, 269 NLRB 1176 (1984), affd. 760 F.2d
1006 (9th Cir. 1985). Castoria's single question
lacked any intrinsically threatening quality, and the
supervisors' passing up of the opportunity to press
Morrison any further on his response to the ques-
tion made it unlikely that Morrison would have ' left
onversation feeling coerced. We conclude thatthe c ersation'
the General Counsel has failed to prove the requi-
site tendency to restrain or coerce and, according-
ly, dismiss that allegation.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the "administrative law
judge as modified below and orders that the Re-
spondent, Pony Express Courier Corp., Colwyn,
Pennsylvania, its officers, agents, successors, and
assigns, shall take the action -set forth in the -Order
as modified.
1. Substitute the following for paragraph 1(g).
"(g) In any like or related manner interfering
with, restraining, or coercing employees 'in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(b)
and reletter the subsequent paragraphs.
"(b) Remove from the Respondent's files any ref-
erence to the unlawful discharges and notify the
employees in writing that this has been done and
3 Member Johansen finds it unnecessary to pass on the judge's finding
of a violation with respect to Momson's questioning as it is cumulative
and does not affect the remedy or the Order
283 NLRB No. 137
PONY EXPRESS COURIER CORP.
that the discharges will not be used - against them in
any way."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER, OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their oven choice
To act together for ; other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT create in the minds of employees
the impression that their union activities are the
subject of company surveillance.
WE WILL NOT solicit employee grievances for
the purpose of adjusting them.
WE WILL NOT promise employees benefits if they
abandon their union activities.
WE WILL NOT coercively interrogate employees
concerning their union sympathies and activities.
WE WILL NOT threaten to, close the plant if em-
ployees become unionized.
WE WILL NOT discourage membership in or ac-
tivities on behalf of Highway 'Truck Drivers and
Helpers Local Union ' No. 107, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any other labor organization, by discharging em-
ployees or otherwise discriminating against them in
their hire or tenure. -
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 Phillip Nye and Janet Dordell
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharges, less any net interim earnings, plus
interest.
869
WE WILL notify Phillip Nye and Janet Dordell
that we have removed from our files any reference
to their discharges and that the discharges will not
be used against them in any way.
PONY EXPRESS COURIER CORP.
Bruce G. Conley, Esq., for the General Counsel.
Thomas Franklin, Esq., of Atlanta, Georgia, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY JR., Administrative Law Judge.
TVs case came on for hearing before 'me at Philadelphia,
Pennsylvania, on an unfair labor practice complaint,
amended at the hearing,' which alleges that Respondent
Pony Express Courier Corp.2 violated Section 8(a)(1)
and (3) the Act. More particularly, the amended com-
plaint alleges that the Respondent created among its em,
ployees the impression that,their union activities were
the subject of company surveillance, coercively interro-
gated employees, solicited employee grievances with a
view toward remedying them, promised employees bene-
fits if they would abandon their union activities, and
threatened to close the plant if it became unionized. The
amended complaint also alleges that the Respondent dis-
criminatorily discharged employees Phillip Nye and
Janet Dordell. The Respondent denies the commission of
independent violations of Section 8(a)(1) and claims that
Nye and Dordell were discharged because they failed to
report for work as scheduled. On these ' contentions the
issues were joined.3
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent operates about -100 facilities throughout
the United States where it is engaged in the delivery of
packages and correspondence within metropolitan areas.
Typical of its operation is the transportation of canceled
I The principal docket entnes -m this case are as follows:
The charge was filed by Phillip Nye, an individual , against the Re-
spondent about June 25, 1985 , the complaint was issued by the Regional
Director for Region 4 on August 7, 1985; Respondent's answer was filed
on August 21, 1985, the hearing was held in Philadelphia, Pennsylvania,
on November 20, 1985; and the briefs were filed with me by the Re-
spondent and the General Counsel on or before December 23, 1985
2 Respondent ^ admits, and I find , that it is a Delaware corporation,
which is engaged in the interstate transportation of packages It maintains
an office for this purpose at Colwyn, Pennsylvania. In the course and
conduct of its business, Respondent has received in excess of $50,000 for
services performed in interstate commerce. Accordingly, the Respondent
is an employer engaged in commerce within the meaning of Sec. 2 (2), (6),
and (7) of the Act Highway Truck Drivers and Helpers Local Union
No. 107,, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of,America is a labor organiza-
tion within the meaning of Sec 2(5) of the Act
3 Certain errors in the transcript are noted and corrected.
I have not attempted to correct all the errors of spelling, punctuation,
and sentence formation that appear in this transcript Suffice it to say that
this case has one of the most poorly prepared transcripts that I have had
the occasion to review as an administrative law judge.
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
checks from banks to clearinghouses and the transporta-
tion of internal company mail between various business
locations that a customer maintains . These items are
transported in vans, station wagons, and other passenger-
type vehicles that are given by employees it calls courier
guards. Courier guards are uniformed drivers who are
dispatched from a central location daily with routing
slips that direct them to pick up and deliver customer
correspondence to and from designated locations. They
report back to the dispatch facility each day at the end
of their routes. Respondent employs about 30 such em-
ployees at its Colwyn, Pennsylvania terminal , a suburb of
Philadelphia, from which point they drive a series of
routes in and about the Philadelphia metropolitan area.
Some of these routes extend as far north as New York
City and as far south as the Maryland suburbs of Wash-
ington, D.C. The Colwyn facility, formerly located at
Lansdowne, Pennsylvania, is unorganized and has no
bargaining' history. Respondent admits' that it is strongly
opposed to the unionization' of its courier guards , both at
Colwyn and throughout its system, and has only_a hand-
ful of organized plants anywhere in the United States.
Following `a regional meeting of Respondent's manag-
ers in November 1984, the Respondent announced, both
at its Lansdowne (now Colwyn) facility and elsewhere,
that it was discontinuing its former practice ' of paying
employees time and a half for hours worked in excess of
40 per week. Apparently it had received a legal opinion
that straight time after 40 hours was lawful under exemp-
tions found in the Federal Wage and'Hour Act for over-
the-road drivers. Shortly after this announcement was
made, several employees decided to inquire at the De-
partment of Labor - whether this practice was lawful.
There is a central meeting place in downtown Philadel-
phia that serves as an informal clearinghouse for drivers
assigned to certain routes. They meet daily near the
P.N.B. Bank at Fourth and Market Streets to exchange
packages destined for delivery that have been picked up
by drivers on other routes. On one such occasion late in
December 1984, the six or seven drivers who met at this
location selected discriminatee Phillip Nye to go to the
Labor Department to inquire about the lawfulness of dis-
continuing overtime payments.
Nye did so and reported back at a subsequent employ-
ee gathering near the P.N.B. Bank that he had been in-
formed that the discontinuance of overtime payments
was lawful. On learning this information, the assembled
drivers decided to organize a union and once again se-
lected Nye to act on their behalf. Nye first phoned
Teamsters Local- 107 and then went to its office on
Spring Garden Street in Philadelphia. He was told that
the Teamsters wanted signatures on designation cards
from,two-thirds of the members of the 30-member bar-
gaining unit before they would file for an election. He
was given cards for this purpose.
At ,another gathering at Fourth and Market, Nye
passed out cards to other drivers for their own signatures
and for further distribution. Nye signed a card on De-
cember 26. He collected other cards at a later date and
turned them in to the Teamsters office.- Between Decem-
ber 26, 1984, and February 5, 1985, seven cards had been
signed and returned to the union office. Some cards were
mailed in and others were turned in by Nye. Nye gave
out cards to employees at the Lansdowne facility and
mailed cards to other drivers whom he could not reach
personally. He even solicited a card from a -lead courier,
Robert Hines . Hines turned him down on the basis that
Hines was a part of management and was not eligible for
unionization.4
The Lansdowne facility was undergoing a change of
management in late January and early February 1985.
Former Branch Manager Al Pentheny was being re-
placed by Richard Raucci. Raucci took over on Febru-
ary 1. This transition was being accomplished by Phillip
O'Neal, the Respondent's regional manager, who main-
tains his office in Richmond, Virginia.
O'Neal had been unhappy with Pentheny's perform-
ance for some time , but told Pentheny that he would not
be coming to Philadelphia during the fall of 1984 because
he was preoccupied at that time with establishing a new
facility in Baltimore . Not long before Pentheny was re-
moved as, branch manager, he had occasion to engage
driver William Daros in a private conversation after
Daros had finished his route. Pentheny invited Daros to
have a cup of coffee at a nearby cafe and, in the course
of their conversation, asked Daros, a union supporter,
"Why are you doing this to me?" Pentheny banged his
fist on the table and accused Daros of being a sneak and
a snake. Daros simply replied that he was simply trying
to better himself.5 -
O'Neal came to Philadelphia to interview prospective
replacements for Pentheny in January 1985. During the
course of his visit he took advantage of the occasion to
hold private interviews with several drivers, including
Nye. O'Neal testified that the purpose of these inter-
views with drivers was to give them an opportunity to
have some input into the question of Pentheny's fitness
as a branch manager..Nye testified credibly that O'Neal
asked him how he felt about things in the office and how
things could be improved. Specifically, O'Neal asked
Nye what he thought of Pentheny as a manager. Nye re-
plied that he did not think well of Pentheny as a manag-
er. He went on to complain about problems involving
vehicle safety. He told O'Neal that vehicle safety-or
the lack thereof-was the biggest gripe the drivers had.
He mentioned such things as bald tires, grinding brakes,
the lack, of a vehicle maintenance or safety program, and
a reply he once received from Pentheny when complain-
ing about the condition of a truck,, namely, that he
would either have to take a truck, out on his- route or go
home and not work on the day in -question. Nye-
specifi-cally mentioned to O'Neal a couple of times when he
was required to drive a vehicle with bald tires. On one
occasion, while driving this truck, he slid through an
intersection, and on another occasion he went up an em-
bankment because of the slick condition of the tires.
O'Neal said he would do what he could and told Nye
that there would be some changes coming soon.
4 Later on in the campaign, Nye also solicited signatures on union au-
thorization cards from lead couriers Willie James and Lee Morrison
5 Driver Mark Zavitski described Pentheny as being scared of union
people. He testified that he never mentioned the Union to Pentheny, but
Pentheny kept talking about it anyhow.
PONY EXPRESS COURIER CORP,
O'Neal testified that his conversations with other driv-
ers during this visit were similar to the one he had held
with Nye. Several drivers complained to him about vehi-
cle maintenance and stated that the manager did not re-
spond to their needs as he should have done. They also
complained about wages and benefits (or lack of bene-
fits), about the fact that they did not get a raise, about
the discontinuance of overtime, and some asked about
health insurance. O'Neal replied, with reference to
Pentheny, that changes would be forthcoming and that
he would study the possibility of instituting more full-
time positions, meaning more positions that included
health insurance as a fringe benefit.6 He also told com-
plaining drivers that the Company's response to the com-
plaint that overtime payments had been discontinued was
that it preferred to allow drivers to maintain their
income levels by giving them extra hours to work rather
than by cutting them off at 40 hours a week to avoid
overtime payments.
Not long after Raucci took over as branch manager,
he held a Saturday morning meeting with drivers to dis-
cuss problems of mutual concern. Just before this meet-
ing began, head courier Felix Castoria held a conversa-
tion with union supporter Leedom Morrison in 'the com-
pany vehicle maintenance area. Raucci was present
during this conversation. Castoria asked Morrison if he
had been approached concerning the Union. Morrison
said that he had not been approached, but had received a
union card, meaning that he received one in -the mail. He
told Castoria that he had heard rumors that unionization
was afoot.
At the meeting, Raucci introduced himself and told
employees that he had previously, worked for various
Philadelphia newspapers. He said he had been a teamster
himself and had dealt with Teamsters before, noting that
he was aware of union activity at the Pony Express ter-
minal. He said he would try to get the employees better
wages and working conditions, but that he could do
nothing about the discontinuance of overtime. He also
said he knew that there was a problem about vehicle
maintenance. He asked the employees to put their union
activity on a back burner for 6 months and give him a
chance to straighten things out. Raucci then went around
the room and asked each driver present if he had any
grievances, Nye complained about bald tires, about slid-
ing through an intersection because of the poor condition
of the tires, and the fact that he had gotten a ticket on
this account. Raucci said he would take care of it.
Driver David Reed complained about certain routing
problems he had encountered with company salesmen.
He wanted the Company to eliminate extra stops' on his
route because he was no longer getting overtime. Again
Raucci said that he would look into it. Driver Quails
complained about the fact that his schedule had been in-
creased with extra hours that conflicted with his school
6 Almost all the drivers at the Colwyn terminal were classified as part-
time employees. This classification bore no relation to the number of
hours they worked It was merely a company designation indicating that
they were not entitled to health insurance or any other company benefit.
For instance, Nye worked a 96-hour week during the first week of his
employment and averaged 68 hours a week throughout his stay with
Pony Express. Nevertheless, he was classified as a part-timer.
871
hours. Other drivers -talked about vehicle safety, about
defective windshields, defective turn signals , bad brakes,
and bad steering equipment. Raucci told them that he
would try to improve things and specifically that he
would try to create more full-time positions' that offered
fringe benefits. I credit Nye's testimony that Raucci told
employees on this occasion that, if a union came in at the
terminal, the Company would close down and padlock
the doors.7
After listening to Raucci, Nye came to the conclusion
that he meant' well, so he decided to take him up on his
offer to put aside union activities for 6 months. A few
days thereafter, Nye turned into Raucci the blank Team-
sters cards that he still had in his possession and told
Raucci that the drivers were going to give him ,a chance
for 6 months. O'Neal corroborated this event, stating
that Raucci had phoned him and informed him that an
unnamed driver had turned over unsigned union cards
and that the employees were going to allow the Compa-
ny -to recertify the complaints that the employees had
voiced without unionization.;
About mid-May, Nye had another change of heart.
According to Nye, Raucci had come to the conclusion
that certain drivers were not paying sufficient attention
to their duties so he removed the fuses from the vehicles
so they could not listen to the radio while driving. His
action had the side effect of knocking out turn signals
and taillights and, in some instances , windshield wipers.
Nye complained. to Raucci, saying that he could not use
the turn signs on his vehicle because the fuse had been
removed. Rau cci told him to use hand signals. Nye ob-
jected, telling Raucci that he had to drive on I•95 near
Washington and he might as well be a kamikazi as use
hand signals on that road. Raucci insisted, telling; him to
do it anyway. The following day, Raucci again spoke
with Nye, referring to him as a "union big mouth." On
this occasion, Raucci told Nye that he would allow driv-
ers to put the fuses back in their vehicles if they could
go through the day without any more "screw-ups."
Shortly thereafter, Nye went back to the Teamsters
office, obtained more cards, and renewed his organizing
effort.
The events leading up to Nye's discharge took place
on Thursday, June 20, and Friday, June 21, 1985. At that
time, Nye was assigned to a route that involved 'a 480-
mile round trip each day. He serviced certain customers
in Philadelphia and then drove as far south as Gaithers-
burg, Maryland, making pickups and deliveries at Sears
& Roebuck locations in the Metropolitan Washington
area. He normally left the Colwyn terminal at 2 p.m. and
returned at 2 a.m. the following day. On June 20, he no-
ticed, about 6 p.m., that a yellow light had come on in
his vehicle. He also smelled exhaust fumes emanating
from the motor. The fumes became so intense that Nye
had to drive with'the window open. Notwithstanding
7 Raucci did not testify and was not summoned by the Respondent to
present any version of events that contradicted either Nye's account or
the testimony of other drivers. I also note that the Respondent also did
not produce Al Pentheny, Noms Scheer, or Jerry Nichols to substantiate
its position, being content to limit its defense to the testimony of Region-
al Manager O'Neal.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this move, he began to feel nauseous, developed a head-
ache, and noticed that his eyes had become red and
watery.
Before leaving for the southern portion of his run, he
returned to the terminal and complained to Norris
Schier, the lead courier or dispatcher on duty, that the
truck was defective and that he was too ill to drive.
Schier had no one to finish the route and no other truck
at the terminal so he called Raucci at home to report this
problem. Raucci asked Nye, through Schier, if he would
agree to finish the route that evening if they found him
another truck. Nye reluctantly did so. Schier was able to
ford another truck by calling a customer location and
contacting another driver. He asked that driver to return
to the terminal and the driver did so. Nye then switched
his delivery items to the other vehicle and proceeded to
Maryland. Before leaving, he told Schier that, if he had
to finish the route that evening, he wanted Friday off so
he could go to the doctor. (He would normally report to
work on Friday at 2 p.m.) Schier said that this would be
no problem because the Company would have almost a
full day to round up a replacement. Nye finished his
route on Friday morning about an hour late and returned
to the terminal about 3:30 a.m.
The other discriminatee in this case is Janet Dordell.
She is what was euphemistically referred to on the
record as Nye's "fiancee." In fact, they had been living
together for some time, and there is record evidence to
support a fording that company management was aware
of this cohabitation. Dordell had been hired about 3
weeks before as a driver for the summer months and
there had been some discussion with management, not
yet finalized, that she might continue to work after she
returned to college in the fall. She had completed a 40-
hour week by Thursday of the week in which_Nye was
discharged. About 3:30 that afternoon, Raucci called her
at her home and asked her if she wanted any more hours
that week. She agreed, so he told her to report at 4:30
Friday morning, to go out on a route with driver Dan
Fabrizio in order to learn Fabrizio's route.
When Nye returned to the terminal early Friday
morning from his route in Maryland, Jerry Nichols was
the lead courier-dispatcher on duty. Nye asked Nichols
when Dordell was due to report. Nichols replied that she
had been asked to train on an additional route and was
supposed to report at 5 a.m., to go out with Fabrizio.
When Nye arrived home, he turned off the alarm that
Dordell had set and informed her that she did not have
to report for work until 5 a.m., therefore she had an
extra half-hour to sleep. Nye called Nichols at 4:30 to
say that Dordell was on her way. Nichols then informed
him that Fabrizio had come and gone and had refused to
wait for Dordell. He then gave her the option of coming
in at 5 or 5:30 a.m. to go out on a training route with
another driver, Robert Hines. Dordeli declined, saying
that Hines was a dangerous driver and that she did not
want to ride in the same vehicle with him. Nichols then
told Nye that Dordell did not have to come in' at all, so
both of them went to sleep.
At 10 o'clock Friday morning, Nye went to see his
physician, Dr. Joel Snyder. He told Dr. Snyder about his
symptoms, which had improved since the preceding
evening, and was informed by the doctor that he was
suffering a toxic reaction to exhaust fumes. He - advised
Nye to take a lot of liquid, flush out his system, and' con-
tinue to take Tylenol and use cold compresses." After
leaving the doctor's office, Nye went to his mother's
home. That afternoon they went shopping together.
About 3:30 on Friday afternoon, Dordell received a
call at her home from Raucci's secretary, who asked if
Nye had left for work. Dordell said he had not, adding
that she did not think he was supposed to report that
afternoon. Raucci got on the phone and she repeated the
same statement to him, saying that Nye was supposed to
go to the doctor and had told the dispatcher the previ-
ous evening that he was going. Raucci then told Dordell
to get in touch with Nye to tell him to report for work,
adding that if he did not report, he would be fired. She
immediately "called Nye's mother's house but Nye was
not there, so she left a message for him to call. Nye did
not get the message until it was too late to report for
work, so he did not go to the terminal until his regular
starting time the following Monday afternoon.
On arriving at the terminal on June 24, Nye. noticed
that his timecard was not in the rack so he went in to
speak to Raucci. Raucci told him that he had not been
excused from reporting to work on Friday and was fired.
Nye argued that Schier, the dispatcher, had approved his
absence while talking over the phone with Raucci on
Thursday evening. Raucci replied he did not remember
this conversation. They argued at some length. Nye also
complained that this was his first offence and that he had
not even received a previous verbal warning about his
work. Raucci held fast, saying that it did not matter
what kind of offense it was. He asserted that, by not
showing up on Friday evening to cover the Maryland
route, Nye might have cost the Company its account
with Sears & Roebuck. He ended by telling Nye that
Nye was out of a job and that Raucci "had no more
union problems."
On the same afternoon, Dordell called the company
office to inquire about her schedule for the coming
week. Raucci took the call and told her that she did not
work there any more because she had not reported for
work on Friday morning as scheduled. Dordell replied
that she had spoken with Jerry Nichols, the dispatcher,
and he had said that she did not have to come in because
the driver she was supposed to go out with, Fabrizio,
had already left. Raucci told her that this did not make
any difference and that she should have reported
anyhow, They argued at length. She told Raucci that
Nichols himself was frequently late and nothing was
done about it. She also charged that she was being fired
because of .her association with Nye. Raucci denied the
charge and refused to change his decision.
Immediately thereafter, Nye engaged private counsel
respecting this discharge. His attorney, John P. William-
son, wrote a letter to Raucci, dated June 24, which
stated:
S A few days after he was discharged, Nye obtained a medical slip
from the doctor evidencing the fact that he had sought medical attention
He presented this slip to Raucci. Raucci said it made no difference with
respect to the discharge
PONY EXPRESS COURIER CORP.
Please be advised that I represent Phillip Nye,
who was illegally terminated by you today. My
client is sincerely interested in retaining his position
with your company. I am, therefore, preparing a
complaint against you and your company to be filed
in Federal District Court. Should you care to settle
this matter by offering Mr. Nye his old position,
then kindly advise immediately.
This letter was referred to Marc P. Katz, Respondent's
vice president, for reply. In a reply to Williamson, dated
July 10, Katz stated:
Your letter of June 24, 1985 addressed to Mr.
Raucci, our Philadelphia branch manager, has been
forwarded to me for response. Please be advised
that I have investigated the situation raised in your
letter and find that Mr. Nye was terminated proper-
lyy, pursuant to the Company's work rules. He appar-
ently missed work on Wednesday, Thursday, and
Friday of the week in question and did not call in
regarding his absence. The Company has suffered a
loss' of business due to this action and could not tol-
erate such conduct on the part of Mr. Nye.
II. ANALYSIS AND CONCLUSIONS
Respondent's regional manager O'Neal testified that
the Respondent has a strong policy of resisting the
unionization of its employees, either by Teamsters or any
other labor organization,9 and this policy is set forth in a
lengthy statement found in its employee handbook. All
employees are required to read this handbook and to sign
a statement acknowledging that they have read it. The
statement is as follows:
This is a non-union facility and we feel very
strongly that a union is not necessary. Without a
union, you as an individual are free to deal directly
with Pony Express without some third party repre-
senting or speaking for you. It is not necessary for
you or anyone else to belong to a union in order to
work at Pony Express.
Pony Express has always tried to deal fairly with
its employees in every way and provide everything
that goes toward making a good job and good
working conditions for any employee who sincerely
and honestly deserves such an opportunity.
We are convinced that our employees prefer to
deal directly with. Pony Express rather than
through a union. We are also convinced that what-
ever unions come in, they generally bring trouble,
strife, and discord. Because of this, it is our belief
that a union here will not work out for your benefit
or for the benefit of other employees. We believe
that employees of Pony Express have been better
off, and will always be better off in the future, with-
out a union. Therefore, it is our policy to oppose
unionism at Pony Express by every proper and
legal means.
9 In light of O'Nears testimony on this point, Respondent's defense
that it' did not fear a Teamsters organizing effort because only a plant
guard "union could represent its "courier guards" is frivolous.
873
If anybody threatens you or puts you under an
undue pressure to join a union, this is illegal and
you may protest it to the U.S. Government. If re-
quested, Pony Express will provide you with the
address and phone number of the government
agency that enforces our Federal labor laws. No
person will be allowed to solicit or carry on union
organizational activities during that employee's
working time. Anyone who does so and who there-
by neglects his own work or interferes with the
work of others will be subject to disciplinary action.
The General Counsel levels no complaint at the legali-
ty of these statements per se. Instead, they form the con-
text for evaluating the balance of the evidence in this
case and should be looked to in determining whether, in
this instance, Respondent has gone about its business of
opposing unionism by every proper and legal means, or
whether it resorted to improper and illegal means to
keep Nye and his associates from organizing its Philadel-
phia branch office.
III. INDEPENDENT VIOLATIONS OF SECTION 8 (A) (1)
OF THE ACT
Just before he left the employment of the Respondent,
Pentheny took employee Daros aside, bought him a cup
of coffee, and asked him why he was "doing these things
to me." In the course of the conversation, Pentheny
banged his fist on the table and accused Daros of being a
sneak and a snake. Although the word "'union" was not
uttered, Daros' reply, namely, that he was just trying to
better himself, makes it clear that Pentheny was referring
to Daros' efforts on behalf of the Teamsters, which had
included- participation in the informal meetings that gen-
erated the union drive, signing a union card, distributing
cards to other employees, and soliciting support from
lead courier Hines. Both the text and the context of
Pentheny's statements make it clear that he was letting
Daros know that he was aware of Daros' union activi-
ties. Moreover, he was coercively interrogating him con-
cerning these activities. By these acts, the Respondent
violated Section 8(a)(1) of the Act.
Soliciting employee grievances when a union is orga-
nizing a plant with a view toward adjusting them is a
violation of Section 8(a)(1) of the Act. Reliance Electric
Co., 191 NLRB 44 (1971); Hi-Lo Foods, 247 NLRB 146;
Montgomery Ward & Co., 253 NLRB 196 (1980); Berger
Transfer & Storage Co,, 253 NLRB 5 (1980). It is of little
consequence that, in the course of such solicitation, an
employer makes an express disclaimer of doing anything
about the grievances he uncovers, if, in fact, he moves to
remedy the grievances or if he promises to look into the
problems that have been brought to his attention. Illinois
Central Community Hospital, 224 NLRB 632 (1976);
Western, Inc., 251 NLRB 1547 (1980); Stride-Rite Corp.,
228 NLRB 224 (1977); National Micronetics, 277 NLRB
993 (1985). Early in 1985, O'Neal came to Philadelphia
and, in the course of his visit, spoke privately to Nye and
to other drivers in order to give them input into a pend-
ing decision to discharge the branch manager, Penth-
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eny's statement to Daros, discussed above, indicates that
the Respondent was well aware at that time that a union
effort was underway at this facility. O'Neal indicated in
the course of these confidential interviews that he
planned to , take some action concerning complaints
against the branch manager, and in fact he did so shortly
thereafter., Other complaints were also voiced. With re-
spect to safety complaints , O'Neal said that he would see
what he could do. With respect to complaints about
wages and fringe benefits, O'Neal replied that he was
contemplating the establishment of more full-time posi-
tions, a move that would carry with it more widespread
entitlement to fringe benefits.
Not long thereafter, at his first encounter with unit
employees, Raucci did the same thing. Noting that he
was aware that union efforts were afoot and that he had
dealt,with the Teamsters before, Raucci went around the
room and, asked each driver in attendance to express
himself on the subject of what was wrong with the Com-
pany. Raucci got an earful. He told Nye he would take
care of his complaint concerning bald tires. He told Reed
that he would look into a burdensome scheduling prob-
lem. Others complained about wages and benefits as well
as a multitude of, safety problems concerning the compa-
ny vehicles. Raucci said he would look into them. He re-
iterated O'Neal's words that the Company would try to
create more full-time positions carrying with them fringe
benefits. Both of the above-recited series of conversa-
tions amount to unlawful solicitations of grievances with
a view toward adjustment and violate Section 8(a)(1) of
the Act. Raucci's promise to create more full-time posi-
tions constitutes an unlawful promise of benefit in viola-
tion of Section 8(a)(1) of the Act. Any lingering doubt
about these violations can be laid to rest by Raucci's re-
quest to assembled employees that they put unionization
on ' the back burner for 6 months in order to give him a
chance to straighten things out.
During `the course of this 'meeting, Raucci also told
employees that, if the Union came into the Philadelphia
facility, the Company would close it down and padlock
the doors. This statement is ,a clear and flagrant threat to
violate rights protected by Section, 7 of the Act and, as
such, is a violation of Section 8(a)(1) of the Act.
Castoria asked Daros a few minutes before this meet-
ing, in the presence of the branch manager , whether he
had been approached by the Union. Morrison replied
that he had not been personally approached but had re-
ceived a union card. This statement constitutes illegal in-
terrogation and is a violation of Section 8(a)(1) of the
Act. It does not constitute a solicitation of grievances
nor a promise of benefits, so any allegations in this
regard pertaining to Castoria should be dismissed.
In many particulars, Katz' statement to Nye's lawyer
was factually false and totally at odds both with O'Neal's
testimony and company documents. Nye did not miss
work on Wednesday or Thursday of the week in ques-
tion, nor did the Company suffer a loss of business due
to Nye's absence on Friday. Sears was angry that the
Pony Express driver was late on his rounds but it did not
cancel its delivery contract. O'Neal reorganized, the divi-
sion of Sears work between the -Philadelphia branch and
,the new Baltimore branch, transferring a delivery run in
Gaithersburg, Maryland, to the Baltimore office and re-
moving it from Philadelphia's responsibility. He also vol-
unteered to Sears that he was firing the driver who came
late, but Sears did not request such action. Sears -remains
a Pony Express customer with respect to its Gaithers-
burg business, Katz' statement to the contrary notwith-
standing.
The operating rule that Nye assertedly violated was
rule 17: "Tardiness or absence without prior notification
and approval." Nye testified credibly that he was ex-
cused from reporting on Friday afternoon and that this
excuse was given to him on Thursday 'evening by the
lead courier, Schier, with Raucci's approval. The occa-
sion of this approval was Nye's agreement to take the
balance of his Thursday run to Maryland despite an ill-
ness due to inhaling exhaust fumes from one,of the Re-
spondent's vehicles. Neither Schier nor Raucci appeared
at the hearing to contradict this testimony.
Nye was the leader of the in-house movement to orga-
nize a union at the Philadelphia branch. He obtained
union cards, signed a card, passed them out,,turned them
in, and disclosed his union affiliation to -Raucci early in
Raucci's career as branch manager when he turned
unused union cards over to Raucci as a gesture of good
faith following Raucci's meeting with company drivers.
This latter act was corroborated by O'Neal, although
O'Neal professed not to know the identity of the union
supporter who had tipped his `hand by surrendering
union cards. Later, Raucci referred to Nye as a "union
big mouth" and told him, on the occasion of his dis-
charge, that by removing Nye he was getting rid of a
union problem. In light of this uncontradicted testimony,
it clearly appears that the Respondent admitted to Nye
that it was firing him for union activities and that its con-
trived responses to Nye's lawyer and to the amended
complaint in this case were merely pretexts clumsily put
together. In light of these circumstances, - including de-
clared animosity to unionization and demonstrated
animus to organizing at the Philadelphia facility, I con-
clude that, by discharging Phillip Nye, the Respondent
violated Section 8(a)(1) and (3) of the Act.
The discharge of Dordell need give only scant pause.
It took place in the context of the intense antiunion
animus' outlined above and the several violations of Sec-
tion 8(a)(1) and (3) already found.' It' also took place in
the context of an operation that was haphazard at best,
that experienced enormous turnover, and that treated
courier guards as fungible commodities to be assigned
and reassigned with ease and little concern for any con-
sideration except that a route be covered on the day in
question by drivers who had a working knowledge of
where pickup and delivery points were located. Raucci
told Dordell on the occasion of her discharge that not
showing up for a scheduled run was the "biggest sin" in
the courier business. The above-recited evidence makes it
abundantly clear that the biggest sin in the Respondent's
courier business was engaging in union activities. The
record in this case in replete with numerous instances of
courier guards failing to show up and giving no notice,
yet being allowed to resume their duties as if nothing
had happened. The record is also clear that the standard
PONY EXPRESS COURIER CORP.
of acceptable practice at the Philadelphia branch when
Dordell was discharged was that a courier guard would
be excused if he gave 3 hours' or more notice that he
was not coming to work.
In the case here at issue , Dordell was scheduled to
take only a training run. In fact , the run she was origi-
nally scheduled to take, as well as the run she was later
offered by Nichols, were both covered by regular driv-
ers. Her presence was for instructional purposes only.
The original offer from Raucci to go on a training run
with Fabrizio was an offer that was optional on her part
to accept. In fact, she did accept. The substituted offer of
a training run with Hines was likewise optional on her
part. In fact, when she told Nichols she did not want to
ride with Hines, Nichols told her that she did not have
to come in at all. As - he was the lead courier and dis-
patcher on duty at 4:30 a.m. on the Friday in question,
he was the chief spokesman for the Company at the fa-
cility at the time, and Dordell had the right to rely on
his assurance. As with other supervisors, Nichols did not
appear to testify , and the Respondent presented no evi-
dence to, contradict her account of what transpired.
Having been fired for an asserted misdeed that was of
little consequence, both in fact and as the Company re-
garded employee behavior, the next question to be posed
was why Raucci took this step, Although he denied that
her discharge had anything to do with the discharge of
Nye, in point of time they were accomplished almost si-
multaneously. Her close affinity to Nye was well known
at the Company. Indeed, Raucci had spoken to her on
Friday afternoon when he called Nye 's apartment to
locate Nye, and he utilized Dordell 's services to transmit
a message to Nye. The economic impact on Nye of dis-
charging an individual who shared Nye's apartment and
presumably his rent is obvious , as is the emotional impact
of such a discharge both on Nye and other employees.
Dordell's own union activities were admittedly nominal.
She discussed unionization with Nye and in fact had
signed an authorization card . However, it is clear that
the Respondent took this action for the purpose of pun-
ishing Nye for his well-known and hostilely regarded
union leadership. Having been discriminated against in
the hire and tenure of her own employment in order to
discourage the union membership and activity on the
part of Nye, Dordell is herself a discriminatee and her
discharge is a violation of Section 8(a)(1) and (3) of the
Act. I so find and conclude.
On the foregoing findings of fact and on the entire
record herein considered as a whole, I make the follow-
ing
CONCLUSIONS OF LAW
1. Respondent Pony Express Courier Corp. is now and
at all times material herein has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Highway Truck Drivers and Helpers Local Union
No. 107, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
875
3. By discharging Phillip Nye and Janet Dordell be-
cause of their sympathy with and activities on behalf of
the Union, the Respondent has violated Section 8 (a)(3) of
the Act.
4. By the acts and conduct set forth above in Conclu-
sion of Law 3; by creating in the minds of employees the
impression that their union activities are the subject of
company surveillance; by soliciting employee grievances
for the purpose of adjusting them; by promising employ-
ees benefits if they abandon their union activities; by co-
ercively interrogating employees concerning their union
sympathies and activities ; and by threatening to close the
plant if employees become unionized, the Respondent
has violated Section 8(a)(1) of the Act.
5. The unfair labor practices set forth above in Con-
clusions of Law 3 and 4 have a close , intimate, and ad-
verse effect on the free flow of commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has committed cer-
tain unfair labor practices, I will recommend that it be
required to cease and desist therefrom and to take other
affirmative actions designed to effectuate ' the purposes
and policies of the Act. Having found a repeated and
continuing disposition on the part of this Respondent to
violate the Act in serious ways, I will recommend to the
Board a broad 8(a)(1) order designed to suppress any and
all violations of that section of the Act. Ilickmota` Foods,
242 NLRB 1357 (1979). I will also recommend that the
Respondent be required to offer full and immediate rein-
statement to Phillip Nye and Janet Dordell to their
former or substantially equivalent employment, and to
make them whole for any loss of pay or benefits that
they may have suffered by reason of the discriminations
found, in accordance with the formula set forth in the
F. W. Woolworth case, i ° with interest thereon at the ad-
justed rate used by the Internal Revenue Service for the
computation of tax payments. Olympic Medical Corp., 250
NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716
(1962). I will also recommend that the Respondent be re-
quired to post the usual notice, advising its employees of
their rights and of the results in this case.
On these findings of fact and conclusions of law and
on the entire record, L issue the following recommend-
edii
ORDER
The Respondent, Pony Express Courier Corp.,
Colwyn, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Creating in the minds of employees the impression
that their union activities are the subject of company sur-
veillance.
90 NLRB 289 (1950).
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
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Soliciting employee grievances for the purpose of
adjusting them.
(c) Promising employees benefits if they abandon their
union activities.
(d) Coercively interrogating employees concerning
their union activities.
(e) Threatening to close the plant if employees became
unionized. -
(f) Discouraging membership in or activities on behalf
of Highway Truck Drivers and Helpers Local Union
No. 107, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America or any other labor organization by discharging
employees or otherwise discriminating against them in
their hire or tenure.
(g) By any other means or in any other manner inter-
fering with, restraining, or coercing employees in the ex-
ercise 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 Phillip Nye and to Janet Dordell, full and
immediate reinstatement to their former or substantially
equivalent employment, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as, a result of the discrimination
against them in the manner set forth in the remedy sec-
tion of the decision.
(b) 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.
(c) Post at Respondent's Colwyn, Pennsylvania place
of business copies of the attached notice marked "Appen-
dix."12 Copies of the notice, on forms provided by the
Regional Director for Region, 4, after being _ signed by
the Respondent's authorized representative, , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken; by the
Respondent to ensure that the notices are not altered, de-
faced, or covered-by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED insofar as matters set
forth in the amended, complaint have not 'been found
herein to be violations of the'Act,, the amended com-
plaint is dismissed.
12 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."