272 N.L.R.B. 895 (N.L.R.B. 1984)

Roadway Express, Inc

National Labor Relations Board - Board DecisionsOct 22, 1984

272 N.L.R.B. 895 (N.L.R.B. 1984)

ROADWAY EXPRESS 895 Roadway Express, Inc and Ronald R Woodward Case 15-CA-9153 22 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 19 June 1984 Administrative Law Judge Robert A Gntta issued the attached decision The General Counsel filed exceptions and a supporting brief and the Respondent filed limited cross excep tions and a supporting 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 1 and conclusions 2 and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed ' In sec III par 13 the judge Inadvertently stated that a meeting was scheduled between management and union representatives for 8 October rather than 5 October 1983 We correct the error 2 We affirm the judge s conclusion that the Respondent did not violate Sec 8(a)(1) of the Act by removing employee Woodward s personal grievance notice from the union bulletin board at the Respondent s facill ty while permitting flower fund and sick donation request notices to remain We do so however because we find such employee assistance fund postings constitute official union business under the plain terms of the contract between the Respondent and the Union The contract confines posting on the union bulletin board to official business of the Union The Respondent considered the issue at length and decided to permit the posting of flower fund and sick donation re quest notices despite its systematic removal from the board of personal notices such as football pools wedding announcements for sale adver tisements business cards etc The Union s head job steward signed all such notices before posting and the parties thus treated the employee as &stance fund notices as official union business authorized by the con tract for posting on the union bulletin board Accordingly the Respond ent s removal of Woodward s personal grievance notice was consistent with its policing of the board to remove all postings not within the rec ognized scope of official union business DECISION STATEMENT OF THE CASE ROBERT A GRITTA Administrative Law Judge This case was tried before me on December 21 1983 in Shreveport Louisiana based on a charge filed by Ronald R Woodward an individual (Charging Party) on October 24 1983 and a complaint issued by the Acting Regional Director for Region 15 of the National Labor Relations Board on November 25 1983 1 The complaint 1 All dates are in 1983 unless otherwise specified alleges that Roadway Express Inc (Respondent) viorat ed Section 8(a)(1) of the Act by removing an employee posting from the bulletin board normally used by the Union for its postings and refusing to allow further post ings by the employee Respondent s timely answer denied the commission of any unfair labor practices All parties were afforded full opportunity to be heard to examine and cross examine witnesses to introduce evi dence and to argue orally A brief was submitted by Re spondent and the General Counsel argued on the record The brief and oral argument were duly considered On the entire record in this case and from my observa non of the witnesses and their demeanor on the witness stand and on substantive reliable evidence considered along with the consistency and inherent probability of testimony I make the following FINDINGS OF FACT I JURISDICTION AND STATUS OF LABOR ORGANIZATIONâ€”PRELIMINARY CONCLUSIONS OF LAW The complaint alleges Respondent admits and I find that Roadway Express Inc is a Delaware corporation engaged in the interstate transportation and shipment of goods and materials by truck to and from its facility in Shreveport Louisiana Jurisdiction is not in issue Road way Express Inc in the past 12 months in the course and conduct of its business operations derived revenues in excess of $50 000 from the shipment of goods from its Shreveport Louisiana facility directly to points located outside the State of Louisiana I conclude and find that Roadway Express Inc is an employer engaged in com merce and in operations affecting commerce within the meaning of Section 2(2) (6) and (7) of the Act The complaint alleges Respondent admits and I con elude and find that Truck Drivers and Helpers Local Union #568 affiliated with the International Brother hood of Teamsters Chauffeurs Warehousemen and Helpers of America Inc is a labor organization within the meaning of Section 2(5) of the Act II BACKGROUND The Shreveport terminal involved in the proceeding is one of several operated by Respondent in various States The Teamsters Local Union #568 represents the freight handling employees at the Shreveport terminal The cur rent contract is effective through March 31 1985 The contract contains a grievance procedure work assign ments clause and a union bulletin board clause among other terms In August 1983 the Respondent by a corn pany notice reaffirmed official union business as the only allowable use of the union bulletin board Assistant Man ager Long posted the notice August 22 1983 Albeit the Union was served a copy of the notice it did not 'com ment on the Company s intent to post and enforce it In early September a work assignment dispute erupted caus ing a grievance to be filed In addition employee Wood ward placed a personal , notice criticizing the disputed work assignment on the official union bulletin board 272 NLRB No 137 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This case results from the Respondent s conduct of re moving Woodward s notice from the union bulletin board and refusing to allow such posting on the official union bulletin board Thus the issue for resolution is whether rank and file employees have the right or pnvi lege to use the union bulletin board for personal notices If so a violation of employees rights has occurred and must be remedied 2 Pertinent testimony and objective evidence is detailed below III THE ALLEGED UNFAIR LABOR PRACTICES Ronald R Woodward ' testified that he has been a freight checker for Respondent for 6 years Woodward also has been alternate job steward for 6 months In the employees breakroom near the dock area is the union bulletin board Woodward stated that it was used for posting of union business and also employee related ma tenals such as sales notices football pools employee do nations for the sick or injured flower funds cartoons newspaper articles and business cards were allowed Woodward in early September asked Crawford the chief steward if the bulletin board could be used to relate information to all shift employees but did not dis cuss any particulars Crawford replied that a previous National Labor Relations Board decision disallowed Re spondent from interfering with employee related postings on the bulletin board At this same time a dispute arose on the dock over the Respondent s use of casual (non union) employees to move the freight with forklifts on weekends The union officials and management had a meeting set at the terminal for October 5 to resolve the dispute Albeit Woodward anticipated filing a grievance over the dispute he independently decided to get a list of named employees to support the grievances pursuant to article 3 section 4 of the contract Woodward had been told by union officials to delay filing a grievance until after the scheduled meeting of October 5 Woodward not as steward but as an employee made a red bordered notice outlining the use of casuals and re questing signatures protesting the use of casuals and sug gesting to employees that a list to be signed would be in the union box The list was entitled Roadway employ ees signature list of protest of casuals using forklifts Neither the Union nor any union official was identified on the notice Woodward did sign his name on the notice The notice was entitled Thought for a Day followed by Roadway Express It was Woodward s intent to add events to the notice as they occurred The precipitating event occurred on September 22 when Manager Draper told employees that pallet jacks were purchased to move freight on the dock September 24 Draper ordered a casual to move dock freight with a fork truck Woodward in this notice characterized the events as Is Roadway trying to tell us something and posted it September 26 at 12 40 p m Woodward wanted majority support of employees for the Union in the meet mg scheduled Woodward previously got Alternate Steward Green s approval of the notice 2 The above is based on credible uncontroverted testimony and objec live evidence Woodward stated that at the time he posted his notice a business card for a barbecue stand and a flower fund notice were on the board The same day the notice was posted it was removed from the board At 3 p m during break Woodward saw the notice on the bulletin board but at the 5 p m break it was not on the bulletin board The other personal notices were removed at the same time Football pools were thereafter taped to the union box The flower fund notice remained on the bulletin board Woodward affirmed that his list for signatures in the union box which is in a separate corner of the breakroom and reserved for employees use was intact Woodward began verbally telling employees of the loca tion of the list and in some cases handcarried the list during his off shift time for employees to sign Within a 3 day period Woodward procured 68 signatures Woodward learned that Managers Cates and Draper had removed his notice from the bulletin board The next day Woodward called the union hall and spoke to Dillsworth the election union official to protest, the re moval Dillsworth told Woodward that the notice was not proper and the Union would take no action Some time after removal Woodward became aware that the company notice restricting use of the bulletin board had been posted before his notice and in fact was still posted William N Green Jr testified he has been a union steward at Respondent s Shreveport terminal for 1 year Green recalled that he and Woodward talked about the notice a day before it was posted Green agreed that the notice should be posted because the Company was breaking the contract by letting casuals use the forklift The day of posting Green was in the breakroom prior to his shift time of 3 30 p m Manager Draper came into the breakroom read the notices on the bulletin board and removed Woodward s notice Green objected to the re moval and Draper replied that the notice was not union business Green took the notice and reposted it Draper left the breakroom Green then went to work on the dock at a location from where he could see the bulletin board At 4 15 p m Green saw Cates and Draper take Woodward s notice off the bulletin board Green con fronted them as they exited the breakroom and asked why the notice was removed Cates stated it was not union business Green said it was union business Cates said he did not have to allow such a posting Green told Cates Well Ill give it to somebody that will make you put it back up The conversation ended The flower fund solicitation remained on the board even though Cates said he did not have to allow it either The next day Green talked to Dillsworth at the union hall about the removal of the notice Dillsworth told Green the notice discriminated against nonunion employ ees and the Union could not do anything about its re moval Green stated that the notice posted by Wood ward was preliminary to the filing of a grievance over the casuals using the forklifts However Green acknowl edged a grievance dated September 6 and filed by Terry Johnson was concerned with the identical dispute of cas uals using forklifts ROADWAY EXPRESS 897 Sometime before Woodward s notice Green had posted a news article on pollution on the same bulletin board and Green objected to its removal Stencil replied he was taking it to Cates Green said Well Mr Cates knows about pulling stuff off the bulletin board and I want it back up there Later the article was replaced on the board In Green s opinion work related information that is for union people is union business and can be posted on the union bulletin board without regard for Respondent s bulletin board notice of August 22 which he acknowledged was posted under plastic on the com pany bulletin board James Draper testified that he has been a terminal op erations manager for 4 years His specific area of respon sibility is supervision of the loading dock The Respond ent s policy of postings on the union bulletin board as spelled out in the contract was reaffirmed on August 22 by a written notice posted on the company bulletin board Terminal Manager Cates instructed Draper to daily review the union bulletin board to ensure that nothing but union business was posted Draper and other assistant terminal managers work 12 hours on 12 hours off 7 days a week Although Cates said to review the board at least once each shift Draper on days where the workload allowed reviewed the board several times Draper has since August removed personal notices re lating to weddings campers for sale firewood for sale football pools outside business cards news clippings cartoons and boats for sale but on instructions from Cates allowed flower fund notices to remain on the board 3 Draper did see a red bordered notice on the union bul letin board on September 26 dealing with casual employ ees Draper did not attempt to remove it but rather de cided to report it to Cates As he read the notice he saw Green on the dock working and watching him through the window Draper then left and reported the notice to Cates Within 30 minutes both men returned to the breakroom Cates read the notice and removed it from the bulletin board Cates also removed an employee wed ding announcement that was posted Green came into the breakroom and asked why the notice on casuals was removed from the board Green said something to the effect that the notice on casuals was official union busi ness and should remain posted The notice nonetheless did not remain on the union bulletin board Charles Cates testified that he has been terminal man ager of Respondent s Shreveport terminal for 10 years Cates has Assistant Manager Long and Terminal Oper ations Managers Mike Stencil Buddy Tapps James Draper and Greg Cuiksa reporting to him 4 Cates on August 22 issued a memo affirming the contract clause relating to the union bulletin board and its use for official union business only The memo was posted the same day A copy of the memo was also sent to the Union the same day and was received by the Union on August 24 3 Terminal Operations Manager Cuilcsa testified to substantially the same experience of removing personal notices from the union bulletin board 4 The parties stipulated that if Stencil and Tapps were called to testify their testimony would be substantially identical to Managers Culksa and Draper in relation to policing the postings on the union bulletin board The memo was posted on both company bulletin boards used for employee notices The following day at the weekly managers meeting Cates instructed the assistant manager and the terminal operations managers to police the postings at least once during their shift and any post ings that were not official union business were to be re moved If a question arose about a particular posting Cates would resolve it On September 26 Draper reported a questionable red bordered notice to Cates Draper and Cates went to the breakroom and Cates read the entire notice After read ing the notice Cates removed it A wedding announce ment which was on the board was also removed at this time As the notices were removed Steward Green en tered the breakroom and asked Cates why the red bor dered notice was removed Cates responded that the notice was not official union business and directed Green s attention to the August 22 memo on the compa ny bulletin board Green turned and walked away with out looking at the August 22 memo The subject notice referred to a practice of using casual employees on weekends to operate a forklift if certain freight had to be removed Prior to Woodward s notice being posted several employees had objected to the casuals use A grievance had been filed at about the same time Through contract channels a meeting was scheduled between management and the union represent atives for October 8 The meeting was held and the dis pute was resolved allowing management to occasionally use casuals on forklifts so long as it was not abused There was no discussion or reference to Woodward s red bordered notice of September 26 Cates the following month did solicit the Union s definition of official union business from Laird Evans , the secretary treasurer of the Union and contract servicing officer who stated that anything emanating from the union hall was to be con sidered official union business Cates agreed with Evans definition Analysis and Conclusions The General Counsel claims that Woodward s notice was unlawfully removed from the union bulletin board because (1) the notice was official union business and/or (2) the bulletin board was consistently used for personal notices by other employees The General Counsel in argument ostensibly ac knowledges that employees (and unions) do not have a statutory right to use of employers bulletin boards Therefore any rights Woodward may have to post no tices on the union bulletin board must be an outgrowth of the facts in this case It is undisputed that the only contractual use of the union bulletin board was for official union business Woodward clearly was acting on his own without sanc tion of the Union and not within his capacity as an alter nate steward Notwithstanding that Woodward testified his notice was ground work for a grievance he admit tedly was told by the Union to hold off filing any gnev ance because the Union and management had scheduled a meeting to attempt a resolution of the dispute Thus Woodward s actions were actually contrary to the 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union s course of action to resolve the dispute Addition ally a grievance had previously been filed by another steward complaining of the identical employer action and which obviously was the basis for the scheduled meeting between the Union and management Where the parties have contracted for the use of bulletin boards the rights of posting are controlled by the contract language Although the General Counsel questions the specificity of the contract language I find the subject clause entire ly clear Further the General Counsel s argument that allowing the Respondent to police the postings and urn laterally determine whether they comply with the con tract language is somehow destructive of a union s pur pose overlooks the very essence of collective bargaining contracts and how they are applied in the workplace I conclude and find that Woodward s notice was not offi cial union business and therefore did not by contract have a right to be posted on the union bulletin board With regard to the practice of allowing personal em ployee notices to be posted on the union bulletin board all but one such notice in evidence is in dispute Wood ward and Green testified that a myriad of personal no tices are placed on the union bulletin board but neither could state when any such notices were posted or how long they may have remained posted Neither denied that such notices are systematically removed from the board by supervisors In addition both professed igno rance of the Respondent s notice of August 22 and its continued viability The objective evidence as well as the credible subjective evidence clearly shows that the Re spondent intended to police the postings on the union bulletin board and did so The fact that a noncomplying notice was posted and remained so for some period of time is not in itself evidence of disparity or discrimina tion in implementation of policy Nor is it evidence of negligent policing or condonation of the postings So long as a reasonable attempt is made to police such post ings an employer s policy in that regard is not subject to attack Any other view in my opinion would reduce the use of a bulletin board to a juvenile contest between em ployees and supervisors Such contests are not and should not be allowed the time consuming determination of this forum or any other Respondent admittedly allowed employees to post flower fund requests or sick donation requests on the union bulletin board even though such notices are not of ficial union business The General Counsel would view this act of Respondent as a departure from the stated policy dictated by the contract and therefore evidence of discriminatory application of its policy toward Wood ward I disagree Not only is the fact that such postings are recognized by the Union as an accommodation on the part of Respondent but the very nature of the act itself removes it from consideration as evidence of dis cnmination in my view I therefore conclude and find that Respondent s removal of Woodward s notice from the union bulletin board was within both the purview and the spirit of the contract clause restricting the use of the bulletin board Further I find it instructive of Re spondent s intent the fact that personal notices of con tirming impact such as football pools and for sale items were placed in the Union s box in the breakroom rather than discarded Accordingly I shall dismiss the complaint allegations respecting Respondent s removal of Woodward s notice from the union bulletin board CONCLUSION OF LAW The General Counsel has failed to sustain his burden of proof that Respondent acted discriminatorily toward Ron Woodward by removing Woodward s notice from the union bulletin board On these findings of fact and conclusions of law and on the entire record I issue the following5 ORDER It is ordered that the complaint be dismissed in its en tirety 5 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