Roadway Express, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1985

274 N.L.R.B. 357 (N.L.R.B. 1985)

ROADWAY EXPRESS
Roadway Express , Inc. and Konstantine Petros.
Case 8-CA-16853
26 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 September 1984 Administrative Law
Judge John H. West issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Roadway
Express, Inc., Toledo, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
' 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 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a
charge filed March 11, 1983, as amended on April 26,
1983, by Konstantine Petros against Roadway Express,
Inc. (Roadway), a complaint was issued April 29, 1983,
alleging that Roadway violated Section 8(a)(1), (3), and
(4) of the National Labor Relations Act (Act), collective-
ly, by unlawfully discharging Petros because he filed a
charge with the Board in Case 8-CA-14982-2 and testi-
fied at the subsequent hearing on June 14, 1982, by sub-
sequently disciplining Petros on four specified dates after
his reinstatement, and by threatening Petros with disci-
pline because he said he might file a grievance. Roadway
denies violating the Act.
A hearing was held on April 11-13, 1983, in Toledo,
Ohio. Briefs were filed by the General Counsel (July
1984), Roadway (August 1981),' and the Charging Party
(August 1984).
On the entire record in this proceeding, including my
observation of the witnesses and their demeanor, and
after considering the aforementioned briefs, I make the
following
' Roadway was granted four extensions of time for filing a brief
FINDINGS OF FACT
1. JURISDICTION
357
Roadway, a Delaware corporation, is an interstate
motor common carrier of general commodities As here
pertinent it maintains a terminal at Toledo The com-
plaint alleges, Roadway admits, and I find that at all
times material herein it has been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. It is alleged, admitted, and I find that the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, Local No. 20 (Team-
sters) is now, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of
the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
Petros has worked as a dockworker for Roadway at
its Toledo terminal since September 1972. He and ap-
proximately 100 other dockworkers who load and unload
trailers are members of the Teamsters, and Petros also
belongs to and has been active in the Teamsters for a
Democratic Union (TDU) since March 1980.2
Ivan Hofmann became manager of the involved termi-
nal in October-1979 with the understanding that he was
to make the operation profitable. Disciplinary action in-
creased over violations of Roadway's work rules and
freight handling rules. While the collective-bargaining
agreement between Roadway and the Teamsters (J Exh.
1), as it relates to the involved terminal, does not speak
to progressive discipline, Hofmann testified that this was
the approach taken to discipline And under the Ohio ad-
dendum Q. Exh. 2) it was agreed that no member shall
be taken out of service without a hearing, with the em-
ployer and union representative present, except for speci-
fied serious violations.3 As testified to by Hofmann,
while an employee would be discharged for consuming
alcoholic beverages or taking drugs while on duty or on
company property, supervisors can exercise discretion
regarding whether to issue a warning letter for less seri-
ous violations such as where to walk when entering or
leaving the terminal.4
Hofmann testified that he reviewed all warning letters
to determine whether they should be issued, and in
reaching his determiantion the factors considered were as
Ifollows:
As long as the information on the warning letter
was factual--in other words, if they wrote down
everything that happened; that they wrote on there
that they had talked to the employee about'the in-
2 Regarding the TDU, Petros has been on the International Steering
Committee, he was chairman of the Roadway committee, and he was
elected as a trustee of the steering committee His picture and name have
appeared in TDU publications which were distributed to Roadway em-
ployees On April 29, 1982, Petros was elected a Teamsters steward Ex-
amples of gnevances Petros filed were introduced G C Exhs 40-44 Up
to the time of the hearing herein Petros had filed 12 grievances
9 There are no written standards in Ohio for determining when a disci-
plinary hearing should be held
4 While under the agreement the employee does not have the right to
file a grievance over a warning letter, he can protest it
274 NLRB No. 52
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fraction, when they talked to him, the time they
talked to him, the circumstances surrounding the in-
cident; any witnesses that were in the general area;
and that it was, in fact, a bona fide violation of the
contract, or a work rule.
Also, Hofmann made the decision on whether or not to
call a hearing If one was called, the employee's work
record for the preceding 9 months was reviewed 5
In January 1981 Petros posted a resolution on the bul-
letin boards in the breakrooms at the involved terminal,
which resolution, if adopted by the membership, might
have resulted in a strike. The resolution was removed by
a supervisor. On February 27, 1981, Petros filed a charge
with the National Labor Relations Board over that
matter. The charge was withdrawn in April 1981 when
Respondent agreed to the posting of TDU material so
long as it was clearly identified as TDU literature. That
same month, when Petros posted notices on the involved
bulletin boards calling for the defeat of a union bylaws
amendment, the bulletin boards were removed from the
rooms. Petros filed a charge on August 11, 1981, alleging
that Roadway violated the Act when it removed the bul-
letin boards. A complaint was issued by the Board on
January 21, 1982. That case, Roadway Express, 268
NLRB 982 (1984) (referred to hereinafter as the bulletin
board case), will be dealt with infra. At this point it need
only be noted that the administrative law judge therein
credited the testimony of Petros and Emit Hudson that
when they asked Hofmann why the bulletin boards had
been removed he replied, saying, among other things,
"that he was a stockholder in the Company, and that he
did not want any material posted on the bulletin boards
which caused problems or called for strikers against
Roadway Express."
Petros testified that he filed a number of unfair labor
practice charges with the Board in 1981 against the
Teamsters, Roadway, and a grievance committee because
they would not process his grievances; and that the
amended charge was dismissed in October 1981. Hof-
mann testified that he was aware of but he was not both-
ered by the fact that Petros filed numerous unfair labor
practice charges against Roadway.
The then chief steward at the involved terminal, Louis
Leasor, testified about a conversation he had in 1980 or
1981 with James Echelson, the assistant terminal manag-
er at Roadway's Toledo terminal According to his testi-
mony, after looking at the shift which was posted,
Leasor said to Echelson, "I didn't see my buddy, Pete
[Petros], on the list. Did you guys forget to call him?" to
which Echelson said "No, but I'd like to forget him."
A coworker of Petros, James Hillabrand, testified as
follows about a conversation he had with one of Road-
way's supervisors, Donald Bowles, around the end of
May or the first of June 1982:
Mr. Bowles come up to me and told me-made
the statement to me, at that time, that if I cared
5 If the hearing was postponed at the behest of the employee, the work
record was "frozen" or, in other words, the alleged violations which oc-
curred within 9 months of the time the hearing was first scheduled, were
still considered
about Mr Petros and his job, then I had better have
a talk with him
I said, "Well, what do you mean?"
He said, "Well, we've been given orders, or been
told, to letter Mr. Petros until he either straightens
up-we're going to letter him until he either quits
or he's fired."
So that's-so after that, then, after he left, I went
over to talk to Pete and told Pete, you know, what
he had said, and that, you know, he better be care-
ful.
Bowles did not testify to deny making this statements It
would appear that to the extent supervisors had some
discretion as to when to write up a warning letter, that
discretion no longer existed with respect to Petros.
Whether Bowles' statement can be interpreted to mean
that Petros would be "lettered" even when he did not
deserve it will be treated infra.
On June 14, 1982, Petros testified in the bulletin board
case, supra.
Dennis Gutman, an employee at the involved terminal,
testified as follows regarding warning letters he and
Petros received.
Q. At what-between what period of time were
you a union steward?
A. Between April of `82 and the end of March of
`84.
Q In July 1982, were you witness to an incident
which involved Konstantine Petros getting a letter
for loitering?
A. Yes.
Q. Could you describe that incident?
A. Well, I was working from 4:00 in the morning
until 12:30, and Konnie was working from 11:00 in
the morning until 7:30 at night, and it was about-
between 5 and 10 minutes till 11.00, and Konnie
was on his way into work, and I was stacking, and
I yelled across the dock at him as he took his time-
card out of the rack.
And I-as I yelled at him, I said , "Guess who's
back to work?" Or "Buddy Tubbs is back to work.
It's his first day back He's on the outbound."
And Konnie was walking from the rack where
the timecards are kept, to the outbound where he
was working, and he never even stopped. And as he
was halfway down to the outbound dock, Bill
Scroggins came out of the center office, city dis-
patch, and he ran down the dock to Konnie and
B The record does not reveal how much before this conversation the
order was given to "letter" Petros Hofmann testified "No" to the fol-
lowing question "Did you ever make any statement , to any of your staff
asking them to discipline Mr Petros in any manner different from anyone
else?" (Emphasis added) Hofmann did not impress me as being the type
of individual who would ask anyone who worked for him to do some-
thing Rather, in my opinion Hofmann would order or tell the person or
persons what he wanted done For the reasons discussed infra, Hofmann
did not impress me as being a credible witness And Assistant Terminal
Manager Dean Schuler, who testified "No sir" to the following question
"Did you ever indicate to any of your line supervisors, or T 0 M 's to
watch Mr Petros more closely because of his union affiliations?" also did
not impress me as being a credible witness
ROADWAY EXPRESS
talked to him, and then he came back and told me
that I was getting a letter for unauthorized break.
And then I found out later on that the letter that
Konstantme got was a letter for loitering as he was
coming into work.
Q. Did you get a letter from an unauthorized
break?
A. Yes.
Q Did-where was Konstantine when you
yelled at him?
A He had just come up the steps He was just
taking his card out of the rack, out of the-where
the timecards are kept, and I was stacking when I
yelled at him.
Q. And what did he say to you?
A. Well, he-the only words that he said to me
was "Who?" when I said, "Guess who's back to
work?"
And I told him who was back to work and he
kept right on walking.
Q Walking towards?
A. Towards he was supposed to be working that
day.
Around July 27 or 29, 1982, Petros and Chief Steward
Gary Tubbs, while attending joint area grievance com-
mittee hearings, were advised during a sidebar meeting
that Hofmann had applied for a flexible workweek.
Petros explained the concept as follows:
The flexible work week concept is-before-nor-
mally, people would either work a Monday through
Friday shift and have the weekend off, or a Tues-
day through Saturday shift and have Sunday or
Monday off.
If the company needs them to work during the
weekend they call them in to work for time and a
half or double time, which is overtime.
This is the standard national master freight agree-
ment type of situation where an employee works
Monday through Friday or Tuesday through Satur-
day. But the flexible work week agreement came
into effect with the option to put it in came into
effect in 1976.
This is where the company can put employees to
work on Monday-I mean on a Saturday and
Sunday for straight time. For example, give them
Thursday or Wednesday off.
This concept came into the national master
freight agreement in 1976
Well, in 1976, we agreed, the employees there
voted and agreed to set up an agreement where 189
employees were red circled. In other words, they
were guaranteed the right to work either Monday
or Tuesday through for Roadway Express, as long
as they work for Roadway Express.
Also, shifts were guaranteed, the starting times
and the amount of people on these shifts were writ-
359
ten down , and we were also guaranteed six and
seven days of work.
Petros forwarded the following certified mail letter
(G.C. Exh. 64) and posted it on Roadway's bulletin
boards on August 3, 1982:
HAROLD LEU, PRESIDENT
LOCAL 20, TEAMSTERS
435 SOUTH HAWLEY STREET
TOLEDO, OHIO, 43609
Dear Sir and Brother
Recently I was informed that Roadway Express
Dock Terminal Manager Ivan Hoffman [sic] is
going to ask for approval of a newly negotiated
Ohio Flexible Workweek as provided for in the
Ohio Addendum and that the matter be placed on
the Ohio Joint State Committee. I and my fellow
Teamsters Brothers on the Dock are very con-
cerned about this I hope you will stop this.
I wish to ask you and your staff for the following
information concerning this situation. I hope you
will cooperate with me-
1. I want a copy of this New Ohio Addendum.
2 Give me copies of all Riders and Agree-
ments negotiated by the Ohio Conference since
January of 1981 that effect my employment at
Roadway Express.
3. A copy of the new Ohio Guidlines [sic]
which cover Flexible Workweeks in Ohio.
4. Any new Local Agreements negotiated by
Local 20 and Roadway Express since January of
1981. ,
5. I realise [sic] that under the IBT Constitu-
tion and The Labor Management Reporting Act,
I am entitled [sic] to all these vital documents
signed or in the possession of my union (requests
1-4). ,
6 What is the position of Harold Leu on this
matter.
7. What is the position of Local 20 on this
matter.
8. When will a Unit Meeting be called to
inform the Brothers on the Dock and answer
questions.
9. Why is Roadway using the grievance pro-
ceedure [sic] rather than negotiating with Local
20 and the Stewards on the Dock
10. Where and when will a vote be taken with
the Dock people if this new Flexible Workweek
Agreement is Approved by the Union for imple-
mentation of the Toledo Roadway Dock as pro-
vided for in the IBT Constitution Article XVI-
Section 4.
11. What is the status of our current Flexible
Workweek Agreement voted on by the Roadway
Local 20 Members in 1976.
13[Sic] Why is Roadway asking for a new
Flexible Workweek Agreement now.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Because of the importance of this matter , please fur-
nish the documents, information, and answers
within 4 days Thank you very much for your co-
operation in this matter.
Fraternally,
/s/ KONSTANTINE PETROS
The following day Hofmann entered the trailer in
which Petros was working and in a raised voice said,
"Why shouldn't we have a flexible work week? I seen
that letter up on the bulletin board that you sent to
Harold Leu."7
Within a few days Petros and others circulated a peti-
tion (G.C. Exh. 66) which reads as follows:
We the undersigned Teamsters employees of Road-
way Express Dock in Toledo, Ohio do hereby ex-
press our complete opposition to the proposed
"Full-flexible work week." We demand that Local
#20 do all in its power to prevent it.
The petition, which was signed by almost all the in-
volved employees, was sent to Leu on August 11, 1982.
The next day Petros along, with other stewards, at-
tended a grievance committee hearing on the flexible
workweek. The stewards vocally opposed the proposal
but Roadway won Hofmann and Jim O'Neill, a labor re-
lations man for Roadway, were also there.
On August 13, 1982, Petros and the stewards saw an
attorney to discuss the legal possibilities of opposing the
proposed flexible workweek.
Also, on August 13, 1982, Hofmann approached Petros
and had him initial a piece of paper which had his name
on it indicating that he was informed of a disciplinary
hearing to be held on August 16, 1982. Petros told Hof-
mann that Petros would be on vacation to which Hof-
mann replied, "That's okay. It gives you more time to
think about."
Petros is credited Hofmann testified that while he remembered read-
ing the letter he did not remember speaking to Petros about it . Hofmann
went on to testify that he does not walk the dock alone, he "always had
a supervisor in the general vicinity of [him] " Hofmann's general tes-
timony does not refute Petros' testimony for the accompanying supervi-
sor could have been outside the trailer and still have been in the general
vicinity
a When he testified the first day of the hearing herein Hofmann was
asked if he remembered informing Petros of the disciplinary meeting
Hofmann replied "You are asking me to pick one particular meeting
Hofmann replied "You are asking me to pick one particular individual
out of literally hundreds, when I had hundreds of hearings , thousands of
letters, over a year ago, that is insane " The very next day, in answering
Respondent counsel's questions Hofmann gave the following testimony:
Q Do you remember telling Mr Petros that he would have more
time to think about his hearing, at one point?
A No, but I remember giving him the notice, and the reason I
remember it is that wasn't our normal method of doing it We had
problem [sic] where people wouldn't show up for hearings and
they'd claim that the telegram-they never got the telegram or that
they never got the letter, and we complained about this to the
Union
We said, "This is ridiculous
So, they said, "Well, take it out to the employees and have them
sign a note?"
I very rarely did that The only reason I did it that day is Dean
[Schuler] had to leave He gave me the packets He says, "You've
On August 19, 1982, the Roadway Workers Associa-
tion (RWA) was formed by certain Roadway employees
to sue the Teamsters and Roadway, among others, for al-
legedly unlawfully taking, as Petros testified, "our 1976
red circled agreement from us without a vote of the
members."9 Subsequently a lawsuit was filed.
A joint management/union meeting was held on
August 25, 1982, at the Teamsters Local hall Leu,
Petros , and other stewards along with Hofmann, O'Neil,
and other Roadway representatives attended. O'Neil and
Hofmann indicated that if Roadway did not receive co-
operation everyone would work during the weekend for
straight time . If the employees cooperated Roadway
"would allow maybe 38 percent of the people to remain
on a Monday or Tuesday through shift." The only stew-
ard to speak out at the meeting against the proposal,
Petros made the following remark: "We will not recog-
nize this new agreement unless there is to vote of the
members to change it. So therefore we-we were not
agreeing to anything that is happening here today." 10
got two or three more people, and we have to have them sign it so
that they 'd be there for the hearing "
So, I walked up to him and gave it to him, and I remember him
telling me he was on vacation, and I said, "Fine, we'll schedule the
next time "
Q All right
A I guess I don't exactly know what I said, but I remember he
was on vacation
Q Do you remember any comment that he would another-have
more time to think about it?
A No, not specifically.
Petros is credited Hofmann's lack of memory on what was said is less
than persuasive
9 As noted above, under the red-circled agreement 189 people were
guaranteed Monday or Tuesday through starts
io Petros' testimony was corrborated by two others who werent
present , Hillabrand and Tubbs With respect to why he did not like the
flex workweek , Tubbs gave the following testimony
Q And you were all opposed to the flex work week, weren't you?
A Well, wouldn't you be?
Q Well, I'm asking you
A Would you like to lose $18,000 a year?
Q Was that what you were faced with?
A Well, definitely Working on a shift that, after 20 years of
Roadway , then I lose-besides losing 18,000 a year, besides facing
working every Saturday and Sunday for straight time?
Hofmann ' gave the following testimony about the above-described meet-
ing and the flex workweek
Q You don' t recall that meeting?
A Why would I recall that meeting?
Q Well, I am just asking you if you recall it?
A. No, I don't
Q You don't recall Mr Petros standing up and opposing this
agreement between the company and the union?
A Many people objected to that I can't specifically say I remem-
ber him or not It was over a year ago
Q. And you were toally unconcerned about opposition to the flexi-
ble work week by many employees in the plant, including Mr.
Petros?
A I didn't want anybody to oppose it, but it didn't matter, we
were going to put it in anyhow, and we did
Q. And it didn't bother you that they were going to bring suit
against the company to-and against the union to try to prevent
your flexible workweek?
A No, not particularly
Q Didn't-now, the flexible work week was going to save you a
lot of money, wasn't it?
A That is correct, It was strictly a business decision
Continued
ROADWAY EXPRESS
An RWA meeting was held on the evening of August
30, 1982, to explain the association to the employees and
to get people to sign up. 'Members were required to' pay
a total of $800 in fees by November 30, 1982. About 95
employees joined
Five days later, September 4, 1982, Hofmann and
Petros discussed the August 30, 1982 RWA meeting.
Petros testified as follows . -
After I discussed those matters [unreleated griev-
ances] with him, he asked me how the. meeting
went, and I said, it went fine. He then asked me, did
you raise enough money. I said, yes. He said, he
couldn't believe it. He said he had walked around
and talked to a lot of people and they thought it
was a bunch of crap.
I just turned and left then, there was no further
discussion. i i
On September 7, 1982, Hofmann stopped by the trailer
Petros was unloading and he asked Petros, who with the
change was working Saturday through with the middle
of the week off, how he liked his new shift. When Petros
said he did not like it, Hofmann told him that it would
help to protect his job.
Petros and Tubbs were in Schuler's office on Septem-
ber 13, at his request, discussing certain grievances A
number of employees had filed grievances and Petros
asked Schuler for their names and how much they were
due in payments so that he could post it and let the em-
ployees know how much money was due them. Petros
testified that Hofmann came in "and he started yelling at
me. He says Dean Schuler isn't going to be you,secre-
tary. Get out of here " Petros left and Tubbs remained.
Tubbs corroborated Petros adding that when Hofmann
"threw Pete [Petros] out .. . I said `If Pete can't be
here, then I'm leaving too.' And I walked out." With re-
spect to this incident Schuler testified as follows:
Gary [Tubbs] had wanted to discuss some' griev-
ances I had a number of grievances I wanted to ask
him about, my hopes being that I could get those
grievances resolved, prior to going in and having to
discuss them in front of a committee.
Q And it did save you a lot of money in overtime, didn't it?
A Certainly did
Petros is credited Hofmann gave the following testimony about this
conversation
Q Didn't you confront Mr Petros with respect to a meeting that
was conducted to organize this organization?
A Not that I recall
Q Didn't you have any conversation with him on or about Sep-
tember 4, 1982, with respect to how this meeting went?
A Not that I recall
Q Didn't you tell them that you had talked to other employees
about this meeting and about the Roadway Employees Workers As-
sociation7
A I don't recall anything like that
Q Didn't you tell him that in your opinion, that this was a bunch
of crap?
A I don't recall that
Q Didn't you ask him whether they had raised enough money?
A I don't recall that either
361
He asked if Mr. Petros could come along Mr.
Petros was a part of some of those grievances, so I
had said yes. We had started covering a particular
grievance and there was discussion on it. They
wanted some records looked up
Q. What kind'of records?
A They wanted to go into number of shifts em-
ployees had worked and how many employees were
involved in a grievance, and what they had coming
from monetary and who was going to get paid-
and I didn't have any of those records available and
it was quite a time-consuming area.
Q. Weren"t.those records available to the union
from other sources?
A. Those records were available for stewards to
review. Yes,'they were.
Q. All right. Well, what happened then, when
you didn't have the records available?
A. There was more discussion and Mr Hofmann
came in about that point, picked up on the flow of
the conversation, and put an end to it.
A. Did he act in a insane or berserk or irrational
way?
A No, he knew .that I was calling up Mr. Tubbs
to discuss grievances because I had told him I
wanted to see if I could get some of them resovled.
And he came in there thinking we're going to be re-
solving grievances and we're discussing one that's
serveral times discussed.
A. What did Mr. Hofmann say when he came in?
A. He told Mr. Petros that, as was indicated ear-
lier, I wasn't a secretary. He told him to leave.
Q Was that the end of it?
A. At that point, there was no more discussion at
all on grievances. Mr. Petros left the room. Mr.
Tubbs left shortly thereafter, and we didn't discuss
any more grievances.
And Hofmann testified as follows regarding this incident:
A Do you remember telling Mr. Petros that
Dean Schuler was not his secretary?
A. Yes.
Q. Could you tell-describe what that incident
was all about?
A. I was in my office and they had their door
open and I had my door open, and I heard Mr.
'Petros, and I guess it was Gary Tubbs, with him,
asking for paperwork and records. And I had some-
thing I had to cover with Dean, and when I walked
in there, I asked Dean what was going on.
I listened for a little bit He said, "He needs this
record and this record and this record."
And I said, "Well, wait a minute All those cases
were decided by the committee or they were decid-
ed in the hearing." I can't remember where they
were decided . I said , "Those records are available
to you there. Dean's not your secretary Now, go
back to work."
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hofman did not testify that he told Petros to leave but
allowed Tubbs to stay albeit the three other people
present testified to that fact.
On September 15, 1982, Petros tendered Schuler two
grievances for his signature and pursuant to the standard
operating procedure Schuler would retain a copy. One
of the grievances challenged Roadway's work rules that
it had recently put into effect because allegedly Road-
way had not negotiated them with the Union The other
challenged the work rules in general allegedly because
they had not been negotiated with the Union. Petros tes-
tified that some of the rules were posted and others
Roadway "had come up with offhand, saying that they
were work rules . . that they hadn't posted." One of
the grievances specified the number of the work rules.
The other challenged all of the rules. Schuler asked
Petros to give him, Schuler, copies of Roadway's work
rules, and he stated that a copy of the work rules should
be attached to the grievance. Petros replied that Schuler
should have a copy of Roadway's work rules. Schuler
refused to sign the grievances and retain a copy, and he
dropped the grievances on the floor and walked away.12
Regarding this incident Schuler testified as follows:
Q. Did you ever throw some grievances on the
ground at Mr. Petros?
A. There was a time on the dock in which I
had-he had handed me some papers to review or
discuss. I don't even recall what those papers were.
I think he wanted me to sign some forms. I told
him how absurd it was and the timeliness of the
issue involved. If it's the occasion I recall, he
wouldn't take them back. I wasn't going to keep
them in my possession. I threw them on the ground.
Petros' disciplinary hearing was held on September 16,
1982. As noted on General Counsel's Exhibit 69, during
the preceding 9-month period, which apparently was
"frozen" in August because Petros could not attend,
Petros received the following warning letters: four for
taking unauthorized breaks, two for being unavailable for
a work call, six for failure to follow posted instructions,
and five for mishandling freight and/or freight bills.14
Also, Petros had a 5-day suspension in December 1981.
Petrol was discharged at the hearing.
The next day, September 17, 1982, Hofmann wrote
(G.C. Exh. 70):
Dear Mr. Petros,
A hearing was held on your behalf on 9/16/82.
Present at the hearing were: Messrs. Hofmann,
Schuler, Humm, Tubbs, Gutman, Hillabrand, Na-
varro and yourself.
As a result of this hearing, based on your Cumu-
lative Work Record, in accordance with the Na-
tional Master Freight Agreement and Central States
Area Local Cartage Supplemental Agreement and
the Ohio Addendum Central States Area Local
Cartage Supplemental Agreement Article #46, you
are hereby discharged.is
Petros filed a grievance (p. 2 of G.C. Exh. 70).
The Administrative Law Judge's decision in the bulle-
tin board case, supra, was issued September 20, 1982. He
concluded that
While it is true that Respondent had no duty, in the
first place, to provide bulletin boards for the use of
the employees, since it maintained the bulletin
Q, Did you offer them back to him without
throwing them on the ground?
A. Yes, sir.
Q, Why wouldn't you take the papers? Do you
remember?
A. I believe the issue involved was a timely issue.
It was either with regards to grievances or rebuttals
of warning letters. It was an issue in which there
was no reason for me to have them in my posses-
sion.
As noted above , the grievances involved Roadway's
work rules . (G.C. Exh. 65.)13
12 Employee Jeffrey Welch testified that while he could not hear what
Petros and Schuler said on September 15, 1982, he "saw Mr Petros and
Mr Schuler talking, and then some papers were being handed back and
forth, and Then Mr Schuler threw some papers down on the dock and
turned around and walked away "
i3 It is noted that page two of G C Exh 65 contains the following
"Will sign for grievance at point the actual rules or instructions are at-
tached to the grievances." Schuler's signature appears below this with
what papers to be a date of 10/7/82 Petros speculated that Schuler
signed it when it was later tendered by another steward Petros testified
that
. a lot of the work rules were changing every day and they
weren't posted If anything, it was more than just, you know, the
challenge of it It was just to get them in writing so people knew
what was expected of them Because they were-getting letters for
things
14 Petros testified regarding the warning letters that , while one was
given for an alleged unauthorized break in June 1982 assertedly because
he talked to Tom Stahl, neither he nor Stahl remembered saying anything
to each other, that two letters were given for one other alleged unauthor-
ized break , and that while he properly loaded a cart , the cart was on the
line for 3 hours and later he was advised by the stacking foreman that
some of the cartons fell off the cart and Petros was given a letter for
mishandling freight since Roadway did not believe his assertion that he
loaded the cart properly The remainder of the warning letters, according
to Petros' testimony , were either unjust or not in violation of the work
rules
i s Regarding Petros, Hofmann gave the following testimony
Q When you were at Toledo, were you aware of any activity, by
Mr Petros, on behalf of TDU or Roadway Workers or anything else
of that type9
A Only that he wore a [TDU] shirt and a cap and a badge, and
that type of thing
Q Did you know anything else about his activities'
A Not specifically
Q Was Mr Petros a disruptive force at the terminal while you
were there, in your view9
A Not at all
Q Did he, in your opinion, lower the profitability of the terminal
in any way)
A Not that I could relate to him
Q Was he any more vocal than anyone else there concerning
issues such as the Ohio flex work week?
A Probably less vocal
Q Were you annoyed at Mr Petros because he filed grievances?
A There were hundreds of grievances filed there No-there's
probably three or 400 grievances
Gutman testified that he saw the terminal manager and the assistant ter-
minal manager read the TDU material Petros brought into the terminal
ROADWAY EXPRESS 363
board under lock and key for union business in ac-
cordance with the bargaining agreement, Respond-
ent may not interfere with the protected activities
of its employees. Once having provided the bulletin
boards in the break rooms and letting the employees
use them for their union activities for several years,
Respondent interfered with the protected activities
of its employees when it removed the boards in
order to prevent the posting of TDU material. It
was not denied by the Respondent that supervisor
Ray had removed the TDU material in January and
that Ray and Schuler had, in effect, prohibited the
posting of union material at that time. It was also
not denied by the Respondent that supervisor Ray
had removed the TDU material in January and that
Ray and Schuler had, in effect, prohibited the post-
ing of union material at that time. It was also not
denied that the bulletin boards were removed in
April 2, days after Petros had again posted TDU
material Hofmann's explanation [footnote omitted]
that as a stockholder in the Company he did not ap-
preciate postings which created problems for his
Company, such as strikers, constituted an admission
that the board had been removed in direct response
to Petros' union activity
A grievance hearing was held on September 29, 1982.
Pertinent portions of the minutes (R. Exh. 17) are as fol-
lows:
Case No. 82-153-K Petros vs. Roadway Express-
Member was present.
Union Rep.-R. Navarro
Stewards-C. Tubbs, J DeVore,
J. Hillerbrand
Company Rep -Hoffman
J. O'Neill, D. Schuler
Summary: Company read letter of discharge dated
September 17, 1982 taken September 16, 1982 based
on grievant's cumulative work record Each letter
was covered, total of sixteen letters. Union states
several letters over nine months-company using
ten months of letters. Last hearing scheduled before
nine months, but because grievant wasn't available,
etc this ruled out one month Determined hearing
was scheduled before end of nine months properly.
Grievant protested six of the letters. Steward
DeVore stated company continues to "pick, pick,
pick" on this man. Grievant claiming he is trying to
do the job the company wants, but they seem to
have supervisor look in over his shoulder his entire
shift [Emphasis added.]
DECISION: Grievant to be returned to work on
regular scheduled shift the week of October 11,
1982. No compensation for time lost. Member to
pay H.W and P [Health, Welfare and Pension]. All
time off to be a disciplinary suspension. Majority.
Apparently there were 17 letters. Regarding the griev-
ance committee hearing, Petros testified herein as fol-
lows:
I believe . . . [the Union representative] only,
presented 10 out of 17 letters, and he failed to even
tell the committee that I had protested every warn-
ing letter. And he merely made brief remarks as to
some of the letters that I had gotten, as to what
happened
He failed to bring any witnesses on my behalf,
like I requested from him. And the whole hearing
more or less took about 15 minutes.
Earlier Petros testified that the union representatives
"told me to keep quiet , that he was going to present the
case, and more or less not to say anything , that he was
going to do all the work." Petros speculated herein that
the Teamsters did not represent him adequately at the
grievance committee hearing possibly because of his
TDU acitivty. 16
Tubbs gave the following testimony regarding the
grievance committee hearing:
Q. Is this what you read [R Exh. 17], an accu-
rate reflection of what transpired at that meeting?
A. No.
Q. And in what way is it not an accurate reflec-
tion?
A. Before we went in there, Mr. Navarro, the
business agent , told myself and Mr . Petros, don't
say a word , I will present the case.
Well, Mr. Petros never presented a case or never
brought the letters up, and the letters was all-Pete
did protest each letter , and Mr . Navarro just passed
them forth-you know- in front of the committee,
but Mr. Petros didn't say a word at his own hearing
down there at the Teamsters hall.
Q. Mr. Tubbs, how long did the hearing last, the
grievance hearing that you attended regarding Kon-
stantine Petro's discharge?
A. Approximately five or ten minutes.
Q. And I believe that the record of the discharge
states that each letter was covered, a total of 16 let-
ters, would you say that that was accurate?
Q. Was each letter covered"
A. No, they were covered not there , but they
were given forth to the committee.
Q. Were they discussed?
A. No.
In the beginning of October 1982 a lawsuit was filed in
the Federal District Court in Toledo by RWA against
the Teamsters, Roadway, et al, over the flexible work-
week.
Petros received a warning letter from Dock Supervi-
sor Ron Covrett on October 17, 1982 (G.C Exh 72), for
mishandling freight and/or freight bills A protest was
i6 Petros went on to explain that TDU intends to make changes in the
Teamsters to make the Union more democratic and accessible to the
members and that the non-TDU members of Local 20 have openly ex-
pressed their dislike for the TDU
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed by Petros, who testified herein about the incident
that,
Well, I was working the inbound dock and I was
told to go stack a half hour and then I would be
stripping.
So when I went to stack I was told by my-told
to report to Tom Ross to stack for a half hour, who
was a stacking foreman at that time.
I noticed that Ron Covrett was on the other side
of the dock, you know, sort of watching me, I was
told to stack-I believe around 94 or 92 door, and
Ron Covrett was on the other side, around 95 or 97
or 98 door.
I believe him and Mike Oldham were over there
watching me. I was told to load that trailer and I
loaded some freight in it and then I went down and
subsequently loaded two other trailers.
While I was loading down-I believe around 86
door, I was told by Ron Covrett to come over to
his trailer here, and start removing the boxes that I
had stacked off on the left hand side.
I had already stacked them It was where they
should have been stacked in the first place. He told
me to remove a row, I removed the row. He told
me to remove another row, I removed another row
and I think after I removed 30 or 40 boxes, he no-
ticed one that the arrows were pointing downwards
on the box instead of upwards, and he said you are
getting a letter for mishandling freight.
Later Petros testified.
He did it in such a manner, like you know,
"Remove Row 1. Okay, remove Row 2. Okay,
remove Row 3. Okay, now you're going to get a
letter for mishandling freight. One of the arrows are
down "
Covrett did not testify.
Regarding his continuing TDU activities, Petros testi-
fied as follows
I attended the TDU convention in late October
[1982] and was reelected to the International Steer-
ing Committee, also to the-became chairman of
the Roadway committee.
Also at this time, people met from-of course
they were TDU members that belonged-that
worked for Roadway Express in different parts of
the country, and we more or less discussed different
items and problems that we were having with
Roadway Express that we can solve together-that
need solving together on a national basis, where we
have to work together to solve on the national type
of basis.
At this present time we found out that some doc-
uments had fallen into TDU's hands concerning the
fact that Roadway was harass-I mean giving let-
ters to people for production purposes. That the
bottom 10 percent of the people on-in production
were given letters and also that Roadway had the
intent to eventually fire these people by giving them
a lot of letters, not for production but for other rea-
sons.
Our intention was to file grievances throughout
the country, and possibly even an after thought it
might even be a lawsuit involved or whatever
The initial thing was to get people to sign peti-
tions urging the union to defend us and to file
grievances challenging this production system that
Roadway-we found out Roadway had in effect.
We believed that they had it in effect anyway.
These were new documents, and around December
or January, I passed out a flier at work telling ev-
erybody what this whole thing was-was going to
happen-you know-the fact that we were going to
pass petitions around, ask for signatures of people
and eventually file a grievance. This would be done
on a nationwide basis.
Q. And did you personally distribute those fliers?
A. Yes, I did.
Q. And where and when did you do it?
A. In the break rooms, and-on non working
time, on breaks or before work or after work.
Q. Can you estimate how many of these docu-
ments you distributed?
A. They were all over the break room-I mean-
you know, I would hand them to people while they
were sitting there eating.
Q. More than 20?
A. I would have to say in the realm around 70 or
80.
Q. Over what period of time did you distribute
them?
A. At the end of December [1982] and the begin-
ning of January [1983]
On January 16, 1983, Petros received a warning letter
(G.C Exh. 73) from Dock Supervisor Joanne Rosinski
for failure to follow posted instructions work rule 8.17
He filed a protest. With respect to this incident, Petros
gave the following testimony:
I was on vacation, and this was the second day
that I had reported back to work. I was sitting in
the break room with-Greg Duncan, Ed Robison
and Brent Thompson, and there were some others,
too, but I can't remember who they were.
I-it was the second day I reported back to work
and we were waiting for the foreman to come in
and give us our instructions as to where to go stack
or where to go strip or who to report to as far as a
foreman.
There was a general procedure at that time to
wait for the foreman to come into the break room
before work and to tell you where you were sup-
posed to go
But then we waited and waited and waited, no
foreman. Then Larry Cole come in, who is a termi-
nal operations manager, he looked at me and says,
what are you doing sitting there, arent't you?
II Work rule 8 reads "No employee is to leave his assigned work area
without permission from his immediate supervisor " G C Exh 2
ROADWAY EXPRESS
I said yes He says, well, you were here yester-
day, you should have known that we report to the
stripping foremans desk now to get our instructions.
He says you are getting a warning-you are
going to get a letter for this, by Brent Thompson
and Ed Robinson who were laid off will not be-
cause they didn't know it-about this new work
rule change.
Also Greg Duncan didn't get a letter also, I was
the only one that received a letter on that date for
this offense.
Q. Were you aware of the change?
A. And I was supposed to report to work for
Joanne Rosinski, so apparently she issued the letter.
No, I wasn't aware of the change
Petros received warning letters from Cole and Rosinski
for this incident. For about 3 years before that the super-
visors came to the breakroom and told the employees
where they were working. Consequently, Petros believed
that on the day in question he was at his work station in
the breakroom awaiting instructions. On his first day
back from his I-week vacation a foreman came into the
breakroom and told Petros he was working for the fore-
man that day.
Regarding the incident, Rosinksi testified that under
the new procedure when the second buzzer sounded in
the breakroom the employees were supposed to go to the
strip desk and receive their assignments ; that on January
16, 1983, when the second buzzer sounded everyone pro-
ceeded to leave the breakroom except Petros; that she
went into the breakroom and told him that he was going
to get a letter for not reporting to his work area at the
sound of the buzzer; that Petros did not make any ex-
cuses to her; that Petros should have known about the
change in procedure because it was covered in mini-
meetings with the employees on the Tuesdays, Thurs-
days, and Saturdays every shift during the 2 to 3 weeks
before the change; that she did not know whether Petros
attended such a meeting, that she knew Thompson and
was aware of the fact that he had been laid off for quite
some time but she did not recall seeing him in the break-
room that day; and that
. if Konnie would have, at that time, made any
inclination to me that he didn't know of-you
know-the new buzzer system, I would have said
okay, well, we will just make this a verbal warning
and now you know.
But he may-you know-nothing to me that he
did not know of it. He didn't say anything to me.
On rebuttal Petros testified that he never attended a
mini-meeting where the new procedure was discussed;
that Rosinski did not come into the breakroom that day;
that he saw Rosinki on the dock for the first time that
day, and that Rosinski did not say anything about a letter
of warning over the incident. Cole did not testify about
this incident.
On February 27, 1983, Petros received a warning
letter from Dock Supervisor Steve Wallace for taking an
365
unauthorized break. (G.C. Exh. 74.) Petros filed a pro-
test. Petros testified as follows regarding this incident:
I was loading some freight on I believe it to be
19 door. I was stripping and I was on a forklift I
was taking a skid over to 19 door to load it on that
trailer.
At that time loading 19 door was Fred Hawkins.
He was a laid off employee who hadn't worked at
Roadway Express for two years, and I guess this
was his first day back to work.
As I approached the door, he removed himself
from the trailer so I could load the skid, and I was
loading the skid and signing my bill on, he at that
time wanted to ask me a few questions because I
was steward, regarding-you know-when he
would be eligible for call next time, because he
wasn 't familiar with the Ohio flexible work week,
the new one, and some of the new rules that were
established under it.
I think I kept working, I never stopped working
or signing my bill on after I loaded the freight in
the trailer. Steve Wallace had come up to me, the
dock supervisor, and I asked Steve Wallace if I
could talk to this man and tell him that he hadn't
worked here for two years-and he would possi-
bly-at least know when he was going to be called
back to work.
Steve Wallace then told me that I have no right
to talk to him, that if I wanted to get permission to
talk to him-that he could not give it, that I would
have to go talk to the terminal operations manager,
who at that time was Randy Keller on the out-
bound dock.
So I went up to Randy Keller and I asked him if
I could-I told him what the siutation was, I ex-
plained to him everything about Hawkins, and he
told me that Hawkins could go read the agreement,
that the company had posted it up on-inside the
window-inside the city dispatch window.
That if he wanted to know anything about it, he
could go and read it and I wasn't allowed to speak
to this man.
After he had spoke to me, Steven Wallace come
up to me and told me I was going to get a letter for
unauthorized break, after Randy Keller spoke to
me.
Q. Had you stopped-had you taken a break at
that time?
A. No.
Q. Had you stopped doing the job that you were
assigned to do at that time?
A. No.18
With respect to the incident , James (referred to above by
Petros as Fred) Hawkins testified as follows:
18 On cross-examination Petros testified that he walked up to the mani-
fest, signed his bills, and talked while doing his duties there, that Wallace
came up after he got off the forklift, and that he saw Wallace approach-
ing
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As close as I recall, Mr Petros was running some
skids of freight into my trailer with a forklift. I
asked him-I knew he was a steward. We aren't
really friends. I don't know him that well, but I
knew he was a stewarad and I had a question about
the call-in rules, being that I hadn't been working
all that much at Roadway
I asked him about it, as he was running the
freight into the trailer, and he gave me an answer,
but he did-he did tell me that we should go
through the foreman, if we want to discuss union
business . This I was unaware of. I didn't know that
that was the procedure.
But a supervisor came up. I don't know the
man's name. The supervisor came up and said some-
thing to the effect of "Stop talking, stop B.S.ing.
Let's go back to work " Something like that. And
that's what we did
Q. All right. In your observation, had Mr. Petros
stopped working while he talked to you?
A. No. No.
Q. Did he leave his work station at any time
when he talked to you?
A. No.
Q. Did you receive any letter of warning at that
time?
A. Not that I can recall I don't believe I got a
letter of warning for that incident.
And Wallace testified as follows regarding the incident.
Mr. Petros was stripping on the outbound, and I
was the stacking foreman for the far north end of
the dock. And Mr. Hawkins was stacking for me at
25 door. And I had gone up to one of the other
doors to check on some bills and, as I passed, Mr
Petros was standing talking to Mr. Hawkins at 25
door I did my business at 29 door or 31 door, and
turned back, and Mr Petros and Mr. Hawkins were
still standing there talking. And as I worked around
the carts and come back towards them, Mr. Petros
got on his horse [forklift] and started to back it out.
A. And, as I walked up, he leaned over to me
and he said, "I can talk to Mr. Hawkins , can't I?"
And I said, "No, sir."
And he says, "Well, it's union business."
And I said, "If it's union business then you'll
have to see Mr. Keller about it, or talk to him on
your break time."
And he said, "Well, we don't take breaks at the
same time." They obviously started at different
times in the evening.
And he said, "Well, I can talk to him anyhow."
And I said, "No, you'll have to see Mr. Keller
then before you can talk to him."
And he finished by saying, "Well, it's personal."
And that's when I issued him a warning letter for
the fact that they had been talking, and his admis-
sion that it was a personal conversation.
And he said, "Okay," and drove away.
And I walked up to Mr. Hawkins and informed
him that he was, also, going to get a letter for his
participation in the conversation.
On cross-examination Wallace gave the following testi-
mony.
Q So, you lettered both the men at that time?
A. Yes, I did. It's a very rare occasion where
two gentlemen are standing and talking that they
both don't get the letter.
Q. How much time elapsed between when you
first passed Petros and Hawkins, and when you
came back to them?
A. Probably five minutes.
Q. Why didn't [you] stop and letter the men
when you passed them the first time if you ob-
served them talking?
A. I have a policy that I am a supervisor on the
dock, and that's a standing policy with the company
that an unauthorized break is not to be taken. I give
most of my workers the benefit of the doubt, first.
If I'm very visual there I would hope that anybody
with a consideration for their job and doing it right
would, immediately, go back to work without my
having to babysit and tell them.
Q. So, you did not walk up to them and admon-
ish them the first time you saw them?
A It's called giving them a break
Q. So, you then ignored it the first time giving
them a break figuring that they would see you and
then go back to work.
A That was the intention, that's the hope, yes.
Q. So, you don't know, during the time that you
weren't observing them, whether Mr Petros and
Mr. Hawkins were engaged in work?
A In work and conversation)
Q. No, in doing the work at the company. In
other words, that they were not working, you
didn't observe them during that period of time
when you were away from them?
A. I was standing two doors away from them
holding freight bills in my hand, writing on-check-
ing the manifest, and able to look at them at the
same time. Mr. Petros had already loaded the skid
that he had brought from his door and signed it on.
They were not engaged in work.
Q. Okay. So, you observed them for this entire
10 minute period?
A. Five, yes.
Q. Five minute period. And they didn't do any
work during that period of time?
A. No, sir.
While, as noted above, there was conflicting testimony
regarding whether Hawkins received a warning letter,
the letter, if it exists, was not introduced herein.
On March 1, 1983, Petros received a warning letter
from Terminal Operations Manager Cole (G.C. Exh. 75).
Petros filed a protest. He testified as follows regarding
this incident.
ROADWAY EXPRESS
I had asked Larry Cole for permission to see a
mishandling freight letter. Previous to that we were
allowed to see mishandling freight letters and see
what we had done wrong on company time. We
were allowed to go in the office and speak to the
supervisor sitting at a desk and discuss this thing
We were not ever-even though we had asked in
the past if a steward could be there, we were not
allowed to have a steward there while we discussed
these letters, even though some of the-what we
said was put into the record and made part of our
record-disciplinary record. When I questioned
what about this or what about that concerning an
individual letter.
Okay, at this present time, Larry Cole ap-
proached me with the information as to what I did
wrong in a letter that I-a mishandling freight letter
that I had asked to see from them
As he approached, I took a piece-a few pieces
of paper out of my pocket. I do take notes all the
time while I work, the company has known this, I
have used them during hearings that I have had.
They have actually seen the notebook, I have pre-
sented them during the grievance hearings that I
protested my-you know-suspensions on.
I merely dust take the trailer number and maybe
write down some instances where I have been har-
assed by foremen and so forth, for my own personal
protection, and this doesen't take very much time
off at all, maybe a couple of minutes or so a day,
they are just beef type of notes. If possible, I try to
take them while I am on break.
At this present time he was approaching me, and
at least for a fact that I wanted to put down what
he was going to tell me that I did wrong, for future
reference, in case he changes his story later on in
the hearing as to what I did wrong in that particu-
lar mishandling freight letter.
As he approached me, I was stacking 117 door,
he seen me take this paper or-it was a black note-
book, with notes-in a notebook, he said you are
getting an unauthorized break for taking notes
Then the buzzer had rang, which signals the be-
ginning of break, so I actually examined these
papers and everything else, and I infoprmed him
that I merely wanted to take this notebook out to
take notes on what he was going to show me.
Petros also testified that supervisors saw him writing in
his notebook-and even asked him if he was writing
notes-on the dock before and he was never given a
warning letter except for this incident and a later inci-
dent involving Cole, which is treated infra, that except
for these two incidents he was never told he could not
write in his notebook on company time, and that since he
filed the charge herein, no one has prevented him from
writing in his notebook on company time. Cole testified
as follows with respect to this incident:
Well, he had asked me for some paperwork on a
previous warning letter, and I went and got it-
and-then I saw him writing a warning letter-I think
that is what it as all about. [Emphasis added ]
367
Q. What happened-you were approaching Mr.
Petros?
A. Yes, I was approaching Mr Petros and I saw
him writing at the-you know-
Q. Was he-did you see what he was writing on?
A. Yes, he was writing on a checkers stand at the
time.
Q. Okay. Did you see what he was writing in?
A. Yeah, a notebook.
Q. Was it a company notebook?
A. I don't-it shouldn't have been because we
don't-checkers don't have a company notebook.
Q. Did Mr. Petros do anything as you ap-
proached? Did you observe him take any action as
you approached?
A. Yes, he put the notebook in his pocket as I
got closer, and he noticed that I was in the area
Q. What happened then, did he make any remark
or conversation?
A Well, he got fidgety and all, because I saw
him writing on the notebook and I mentioned it to
him, and then that is when I told him I was going
to give him a warning letter for unauthorized break.
Q Did he admit to you that he was writing in a
book?
A. Yeah.
Q. And did you issue him a warning letter on ac-
count of that?
A. Not because he admitted to me, I had saw
him, and he admitted that he was writing in the
book
Q. Did you issue him a warning letter because he
was writing in the book?
A. Yes, because he was writing in the book, you
know, instead of doing his job.
Q. Was Mr. Petros on company time when he
was writing in that book?
A. Yeah, he was on company time.
Petros gave the following testimony about a conversa-
tion he had with Cole on April 12, 1983:
I was stripping 152 door, and as I was signing my
bills on, doing my paperwork, signing my produc-
tion card at my desk, he approached me and ac-
cused me of writing notes in a big black book.
I told him I was doing my paperwork Then he
told me to unload some skids or pallets that I had in
152 door into 154 door.
I then proceeded to find a forklift and take the
pallets-you know-to 154 door. At that time as I
was approaching 154 door, Larry Cole pulled the
dock plate up into the door. The dock plate is a
plate that makes a continuous plane from the dock
to the trailer that is to be loaded, and that makes
it-it makes it possible for a forklift or a cart to
cross into the trailer from the dock.
At that point in time as he lifted the dock plate, I
told him that this wasn't his job and that he could
expect a grievance from that.
Q Why would you grieve over that?
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, it is a dock workers job to pull the
plates, open the doors, load the freight and-this is
something that we have been doing for 10 to 12
years.
Q. Did he respond to you?
A. He responded to me, he became very upset,
he told me that I could do what I had to do, but I
would get mine. That if life was miserable for me
now, wait until I would have to explain these letters
at my next hearing.
He also told me that if I filed against him, that I
would have to file against everybody.
Q. Was there any more to that?
A. I never filed a grievance.
Regarding this incident, Cole testified in direct examina-
tion that about an hour before the incident he gave
Petros a warning letter for writing in his notebook on
company time,19 that after he was in Petros' area several
times he, Cole, pulled a dock plate and Petros told him
that he, Petros, was going to file a grievance; and that he
did not tell Petros that he was going to make life misera-
ble for him; that he did not tell Petros that he would get
his if he filed a grievance; and that he did not make any
threat to Petros on cross-examination Cole gave the fol-
lowing testimony:
Q. Mr. Cole, your recollection of the dock plate
conversation is not very good at this point, is it?
A. No, because I considered it unimportant at the
time because-you know- it is something that I do
every day.
Q You think it possible that you could have told
Mr. Petros that if he was going to file against you,
he would have to file against everybody?
A. I-that would be the thing that's possible-I
don't know-why should I say that-no.
Q. You don't recall saying that?
A. No.
Q. Well, didn't you just state that pulling the
dock plate was something that you did all the time?
A. Yes, that is something that I did, and all my
supervisors as well as dockmen, so I see no griev-
ance in it , so I considered it unimportant.
Q. So you can't recall saying that either?
A. No.
Q Is it possible that you could have said to Mr.
Petros, that if he filed against you, he would have
to file against everyone?
A. Well-I am sure that wouldn't be my words.
Q. It wouldn't be your words?
A. No, I-I probably didn't even mention the
thing.
Q. So you don't have any-
A. I don't remember saying anything back to him
about it, he said it and I-all I remember doing is
just ignoring it because it was unimportant to me.
Q. So as far as you can recall, there was then no
real conversations?
A. No, no real conversation at all, other than him
saying it to me, and I just left it alone.
B. Contentions
The General Counsel contends that the employee dis-
ciplinary records he introduced (G C. Exhs. 5-37, see
also G.C. Exhs. 76-85) and Respondent introduced (R.
Exhs. 10-14) demonstrate that Respondent treated Petros
disparately; that additional evidence supporting the dis-
criminatory treatment of Petros can be found in (1)
Bowles ' above-described statement, (2) Hofmann's over-
all antipathy toward Petros and his TDU activities
which was evidenced in Hofmann's above-described
ejection of Petros from Schuler's office, (3) Hofmann's
statement to business agent Navarro that Hofmann was
worried that the TDU literature that Petros was bringing
to the plant was a threat because Hofmann believed it
called for a strike at Roadway; (4) Schuler's throwing
the grievance papers on the dock when they were ten-
dered to him by Petros; (5) the warning letter Petros re-
ceived on February 27, 1983, assertedly for talking to
Hawkins,20 and (6) Petros receiving a warning letter for
loitering when on his way to his work station he uttered
at most a few words in response to a question on
Gutman; that Hofmann's own testimony established that
enormous amounts of money were at stake in revising
the flexible workweek program and Hofmann's denial
that he was aware of Petros' involvement in the opposi-
tion to the proposed modifiation is simply unbelievable;
that Respondent through its supervisors carried on a pro-
gram of harassment by issuing the above-described warn-
ing letters on October 17, 1982, and January 16, Febru-
ary 27, and March 1, 1983; and that Cole's April 12, 1983
statement to Petros was a clear threat to discourage him
from filing a grievance.
Respondent argues that "the Board erred in failing to
honor its own deferral standards" (R. Br. 3), that there is
no evidence on the record which demonstrates that
Petros was disciplined more harshly than other employ-
ees similarly situated or that Respondent failed to act
consistently in issuing discipline to Petros; that while the
General Counsel presented disciplinary records that are
inapplicable or dissimilar to the record of Petros, Re-
spondent presented the disciplinary records of five em-
ployees with records very similar to that of Petros; that
the General Counsel has produced no evidence that Re-
spondent 's discipline of the Charging Party was in any
part motivated by improper considerations; that the inci-
dents which are alleged to be indicative of Respondent's
attitude are "so innocuous, ambigious [sic] or trivial as to
make General Counsel's allegations appear truly ridicu-
lous" (R. Br. 16); that Respondent had no motivation to
take action against Petros because of any of his activities;
that the supervisors who testified, Cole, Rosinski, and
Wallace, all stated that they were unconcerned with
19 As noted in R Exh 5, Petros did receive other warning letters after
returning from his discharge , which letters were not specifically chal-
lenged herein
20 The General Counsel argues that no warning letter to Hawkins was
produced because no warning letter was issued
ROADWAY EXPRESS
Petros' activities and had been given no instructions to
single him out for discipline, and that
. . during Mr. Hofmann's term as manager the
profitability of the Toledo Terminal increased sig-
nificantly . . . . Such improved performance result-
ed from increases in productivity which were
achieved by enforcing the rules and regulations es-
tablished by the Company' . . . It is clear that Mr.
Hofmann was achieving his goal and in fact he
achieved it so well that he was promoted to District
Manager. Given these facts, there is simply no ra-
tional basis to believe that he would have con-
cerned himself with the activities of Konstantine
Petros There was no reason to do it and the evi-
dence produced in this case does not indicate that
he did do it. [R. Br 26.]
The Charging Party, on brief, contends that an analy-
sis of the warning letters issued to Petros and a compari-
son with other discharges of employees show that Petrds
was disparately treated by Roadway; that the implication
of Bowles' statement is that an attempt to get Petros to
straighten up would be an attempt to get him to cease
his union activities since Petros' work record reflects
that he never engaged in any gross infractions of the
work rules, such as insubordination or drunkenness or
excess absenteeism, which might otherwise explain the
urge to straighten him up; that it was demonstrated sta-
tistically that Petros received most of the warning letters
because of the bulletin board case, supra, in that 13 of
the 17 warning letters relied on for Petros' discharge
were issued in the 2-month period surrounding the hear-
ing on the bulletin board case; that that hearing was held
on June 14, 1982, and 5 letters were issued between the
beginning of June 1982 and 'the time Petros testified and
8 letters were issued between the time Petros testified
and the end of July 1982, and that
[Hofmann and Schuler] repeatedly contradicted
themselves on the discipline system in effect Dean
Schuler, near the end of the hearing, emphatically
stated that "it's a progressive disciplinary process "
. . . Yet Hofmann had conceded early in the hear-
ing that an employee could be disciplined for as few
as one warning letters [sic], and that there were no
rules or guidelines to show how an employee
should be disciplined . . . This contradiction is
significant because it belies Respondent's reason for
so emphatically asserting the progressiveness of
their system-they wanted to rely on Petros' prior
five day suspension, knowing that the 17 warning
letters issued to Petros, coupled with a good attend-
ance record, could not support a discharge. Evi-
dence produced at trial including the work record
on such individuals as Mr Gregory, who received
28 warning letters and had a 29% absenteeism rate
prior to his discipline hearing and then received no
discipline, indicates that the Respondent's discipli-
nary system was not truly progressive. [C.P. Br. 9.]
369
C. Analysis
In International Harvester Co, 271 NLRB 647 (1984),
the Board concluded as follows.
The Board has consistently held that allegations
of an employer's violation of Section 8(a)(4) will
not be deferred to arbitration. In United Technol-
ogies, the Board returned to the deferral policy
originally established in Collyer Insulated Wire' and
made clear'that the Board will now defer to arbitar-
ation complaints alleging a violation of Section
8(a)(1), (3), or (5) where the underlying issues are
cognizable under the grievance-arbitration provi-
sions of the parties' collective-bargaining agreement.
United Technologies does not address the Board's es-
tablished position concerning alleged violations of
Section 8(a)(4) The resolution of questions concern-
ing access to Board processes has always been held
to be solely within the Board's province to decide.
McKinley Transport Ltd, 219 NLRB 1148, 1151
(1975) In Filmation Associates, 2 the Board stated-
The prohibition expressed in Section 8(a)(4)
against discharging or otherwise discriminating
against an employee because he has filed charges
or given testimony under the Act is a fundamen-
tal guarantee to employees that they may invoke
or participate, in the investigative procedures of
this Board without fear of reprisal and is clearly
required in order to safeguard the integrity of the
Board's processes In our view the duty to preserve
the Board's processes from abuse is a function of
this Board and may not be delegated to the parties
or an arbitrator [Emphasis added.]
In addition, we find that where, as here, there are
alleged violations of Section 8(a)(3) and (1) that are
"closely intertwined" with the allegations involving
Section 8(a)(4), deferral of those statutory issues is
equally inappropriate. To hold otherwise would be
contrary to the Board's established policy.3 More-
over, it would be inefficient for the judge to resolve
only the alleged violation of Section 8(a)(4) and not
the releated allegations concerning Section 8(a)(3)
and (1) where, as here, a hearing on all the alleged
violations has already been held.
1 192 NLRB 837 (1971) This policy had been largely aban-
doned by the Board in General American Transporation , 228 NLRB
808 (1977)
2 227 NLRB 1721 (1977) Accord Postal Service, 227 NLRB
1826 (1977)
3 Filmation Associates, supra at 1722
Accordingly, Respondent's belated attempt to have the
issues raised by the complaint herein deferred to the
grievance-arbitration provision of the collective-bargain-
ing agreement must fall
Taking the last alleged violation first, it is my opinion
that Cole did threaten Petros on April 12, 1983. Petros
impressed me as being a credible witness Cole did not
Cole's denial on cross-examination, as set forth above,
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contains a concession that his recollection of the dock-
plate conversation was not very good when he testified
herein Cole's denial was equivocal . Regarding his de-
meanor, it is my opinion that Cole was not sincere and
he was not concerned with being convincing but rather
he took what he believed to be the easiest way out of his
predicament , viz, at first testifying that possibly he told
Petros that he would have to file against everybody and
then testifying that he did not recall saying that , that he
was sure it would not be his words, and that he "prob-
ably didn ' t mention the thing " (Emphasis added )
Cole's testimony about the March 1, 1983 warning
letter is not credited Petros' rendition of what occurred
makes sense while Cole's does not. Both agree that
Petros asked to see a previously issued warning letter.
There is also agreement on the fact that Cole went to get
the letter and was returning with it . At this point, how-
ever , their testimony differs. Petros asserts that he was
taking the notebook out to make notes in it regarding the
warning letter which Cole was about to give to him for
his perusal That seems to make sense . Cole, on the other
hand , asserts that Petros was writing in the notebook
before he, Cole, gave him the previously issued warning
letter . What could Petros have been writing? Cole as-
serts, "I saw him writing a warning letter ." Did Cole ac-
tually mean to testify that he saw Petros writing about a
warning letter Since Cole testified that he saw Petros
writing before he gave the previously issued warning
letter to Petros, according to Cole's own testimony
Petros could not have been writing about that warning
letter. Petros was a credible witness who gave detailed
plausible testimony . Cole was not a credible witness and
his testimony was not plausible . Cole's conduct gives
credence to Bowles' statement that supervisors were or-
dered or told to letter Petros . While Bowles made his
statement while Hofmann was still in charge in May-
June 1982, apparently this position was reiterated when
Cole became a superivsor Petros' testimony that Cole
was the only supervisor to letter him over his notebook
was not refuted.
In my opinion the February 27, 1983 warning letter
was unjustified . Wallace's testimony is incredible. It con-
flicts with the testimony of Petros and Hawkins . It is in-
consistent with the facts in that while Wallace himself
testified that he told Petros two times to first see Keller
before talking to Hawkins, Wallace then goes on to testi-
fy that Petros then said , " It's personal ," and Wallace
then issued a warning letter . Petros testified that Wallace
issued the warning letter after he, Petros, spoke to
Keller . Keller did not testify herein. Consequently there
is no reason for doubting Petros' testimony that he spoke
to Keller . Why would Petros, as alleged by Wallace, tell
Wallace that it was a personal matter and then go to see
Keller to discuss this union matter ? Petros' testimony
makes sense ; Wallace's testimony does not Wallace did
not issue the warning letter before Petros saw Keller and
he did not issue it because Petros said , "It's personal."
Rather , Wallace issued the warning letter after Petros
saw Keller because Wallace saw this as an opportunity
to comply with the order to letter Petros.21
While Cole testified herein, he did not deny Petros'
testimony that he, Cole ( 1) spoke to Petros on January
16, 1983, about his failure to go to the stripping fore-
man's desk from the breakroom at the sound of the
second buzzer , and (2) issued a warning letter over the
incident. Since Rosinski also issued a warning letter over
this incident it would appear that Petros was penalized
twice for the same alleged violation . As noted above,
Hofmann in reviewing warning letters looked to see,
inter alia, that the supervisors noted that "they had
talked to the employee about the infraction ; when they
talked to him; the time they talked to him." While Hof-
mann was no longer at the terminal in January 1983, Ro-
sinski , since she started at Roadway in July 1979, had
worked under Hofmann . Rosinksi did not talk to Petros
regarding this incident Cole did not deny Petros' testi-
mony that he remained in the breakroom with Duncan,
Robison , and Thompson after the second buzzer and
Cole was aware of this. Is it Respondent 's position that
even after Cole explained the situation Petros stayed in
the breakroom alone until Rosinksi entered? Would that
not have been insubordination? Rosinksi did not enter the
breakroom as she testified . And she did not ask Petros
himself why he did not show up on time because she
was told by someone else about the incident . Further-
more, Rosinski did not ask Petros for an explanation and
in fact did not even discuss the incident with Petros be-
cause she was told to issue the warning letter and, there-
fore, there was no need to discuss the matter with
Petros.22 There was no real justification for this warning
letter.
With respect to the October 17, 1982 incident, it is not
the General Counsel's contention that there was not a
box with the arrows incorrectly pointing downward but
rather he contends that "the supervisor purposefully
sought a reason for issuing a letter of warning to
Petros." (G.C. Br. 19) On the other hand, Roadway
argues on brief that "[e]vidently the Charging Party feels
he is being `discriminated ' against because a supervisor
suspected him of committing an error-a suspicion that
was ultimately borne out " (R Br. 11.) Since Covrett did
not testify herein , it is only speculation that he suspected
Petros of committing an error. Exactly why he had
Petros strip three rows of the cartons to find the box
with the arrows pointing the wrong way is not a matter
of record And why Covrett waited on this matter until
Petros left that trailer at 94 or 92 door and loaded two
trailers by the 86 door is not a matter of record. Appar-
ently the box with the arrows pointing the wrong way
was not visable to someone who would walk into the
trailer after Petros stacked the cartons, Petros had to
move 3 rows of a total of 30 or 40 boxes before the box
with the arrow pointing in the wrong direction could be
seen. While Petros was stacking the involved trailer
Covrett was, according to Petros ' unchallenged testimo-
21 As noted above although Hawkins denied receiving a warning letter
over this incident , the letter was never produced
22 If, as noted above , Rosinksi would have been willing to accept
Petros' explanation , why did not Cole'
ROADWAY EXPRESS
ny, watching Petros from the other side of the dock by
another door . Exactly what Covrett could have seen
across the dock while Petros was stacking the trailer is
not a matter of record In these circumstances it is my
opinion that the General Counsel is correct in asserting
that Covrett purposefully sought a reason for issuing a
letter of warning to Petros
While the discharge occurred within the 10(b) period,
the alleged basis for the discahrge and Bowles ' statement
occurred outside the 10(b) period . Nonetheless these
matters can be considered herein for as pointed out in
Stafford Trucking, 154 NLRB 1309 1310 ( 1965):
This case is similar to The Wm . H. Block Compa-
ny case, 152 NLRB 594, in that a substantial portion
of the evidence revealing Respondent 's motive in
discharging Becker and Immel occurred outside the
Section 10(b) period preceding the charge. As we
noted in the Block case , such evidence is not there-
by removed from our consideration in determining
whether these employees were lawfully discharged
within the 10 (b) period . The Supreme Court has
pointed out that "earlier events may be utilized to
shed light on the true character of matters occuring
within the limitation period."' Particularizing this
principle, the court cited the rationale adopted by
the Board in Axelson Manufacturing Company, 88
NLRB 761, 766 that : "Events obscure , ambiguous,
or even meaningless when viewed in isolation may,
like the component parts of an equation , become
clear, definitive , and informative when considered
in relation to other action . Conduct, like language,
takes its meaning from the circumstances in which
it occurs . Congress can scarcely have intended that
the Board , in the performance of its duty to decide
the validity of conduct within the 6-month period,
should ignore reliable, probative , and substantial
evidence as to the meaning and the nature of the
conduct."
1 Local Lodge No 1424, International Association of Machinists,
AFL-CIO, etc (Bryan Manufacturing Co) v N L R B, 362 us
411
Petros' disciplinary record (R. Exh 5 ) reveals that
during Hofmann's tenure, October 1979 to October 1982
(actually the record begins 11/25/80), normally Petros
received up to two warning letters a month except (1)
when Petros filed a charge with the Board in the bulletin
board case supra on February 27, 1981, in that in the fol-
lowing month he received four warning letters and the
month after that, April 1982, he received three warning
letters and a 3-day suspension , (2) when the Board issued
the complaint in the bulletin board case, supra on Janu-
ary 21, 1982, in that in February 1982 five warning let-
ters were issued (four were later rescinded), in March
1982 five warning letters were issued (four were later re-
scinded), and in April 1982 three warning letters were
issued and later rescinded , and (3 ) when Petros testified
in the bulletin board case, supra , on June 14, 1982, in
that seven warning letters were issued in June 1982 (five
of the seven were issued between June 1 and June 14,
1982, but the hearing date had undoubtedly been set by
371
that time and there could have been no doubt that the
Charging Party Petros had assisted and would assist in
the prosecution of that case. Also Bowles had admitted
that supervisors were under orders to "letter " Petros)
and six warning letters were issued in July 1982.
Both Hofmann and Wallace testified that normally su-
pervisors have some discretion as to whether to issue a
warning letter And Roadway , on brief, indicates that
"[s]ince the disciplinary progression is not a formal one
Respondent had the power to show . . . [at least one
employee] some leniency." (R. Br.) It would appear that
at a minimum Roadway believed it could and it did pre-
clude the exercising of any discretion favorable to Petros
in the disciplinary process. But it was not just a case of
precluding the supervisors from exercising discretion.
Rather the supervisors were ordered to "letter" Petros
until he straightens out, quits , or is fired Immediately
after this admission Petros received the most warning
letters he had received in any 1-month period, seven
(even considering the months subsequent to the filing of
the original charge and the issuance of the complaint in
the bulletin board case, supra), which far exceeded the
normal number of warning letters he received during a
1-month period (excluding from consideration the
number of warning letters issued in those months subse-
quent to the original charge and the complaint in the
bulletin board case, supra ). Roadway's counsel elicited
testimony from Petros that some of the letters relied on
to discharge him were fabrications , including two warn-
ing letters issued for the same alleged violation. In view
of the fact that Cole did not refute Petros' testimony that
he, Cole, along with Rosinksi issued a warning letter
over the above-described January 16, 1983 incident, and
in view of the fact that even though Roadway elicited
this testimony and was given specifics regarding when
and who issued the warning letters but yet chose not to
refute it , it must be concluded that Petros was correct.
Some of the warning letters used in discharging Petros
were fabrications.
The General Counsel introduced evidence which dem-
onstrates that Roadway's true motivation in lettering
Petros to the extent it did was his protected concerted
activity and his participation in the bulletin board case,
supra. Bowles' statement, made just a few weeks before
Petros testified, was meant to be a warning to Petros that
his participation in the bulletin board case, supra, could
result in his firing. The warning letters issued between
June 1 and 14 when he testified demonstrated that this
was not an idle threat.
The postdischarge warning letters specifically chal-
lenged herein demonstrated that supervisors were letter-
ing Petros without justification. Their denials that they
were told to letter him are not credited The conclusion
is inescapable, in view of all that is described above, that
at least during June and July 1982 Petros was being let-
tered to some extent without justification.23
23 As noted above, in my opinion there is substantial evidence showing
that Petros was also lettered unjustifiably after the original charge was
filed and the complaint was issued in the bulletin board case, supra
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Once Roadway misused the warning letter portion of
its disciplinary process in my opinion it obviated the
need to compare punishment meted out to Petros vis-a-
vis other employees based on their disciplinary records.
Petros' disciplinary record itself has been shown to be
flawed
The alleged basis for Petros' discharge was a pretext.
There was no legitimate business justification for the de-
cision and so there was no dual motive. Notwithstanding
this, under Limestone Apparel Corp., 255 NLRB 722
(1981); Wright Line, 251 NLRB 1083 (1980), enfd. 662
F 2d 899 (lst• Cir 1981), cert denied 455 U.S 989 (1982),
approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983), applies to all cases alleging viola-
tions of Section 8(a)(3) and (1) turning on.employer•mo-
tivation. Under Wright Line, supra, the General Counsel
demonstrated that Petros was viewed. by 'Hofmann as a
union activist; that Hofmann harbored animus toward
Petros and his activities,24 and that even if a dual motive
existed, which it does not, Roadway did not meet its
burden of demonstrating, after the General Counsel
made a prima facie case, that the same action would
have taken place irrespective of Petros' protected con-
duct.25 This Wright line analysis applies with equal force
to four above-described postdischarge warning letters.
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local No. 20 is
a labor organization within the meaning of Section 2(5)
of the Act
'3. Respondent violated Section 8(a)(1), (3), and (4) of
the Act by discharging Konstantine Petros on September
16, 1982, and by issuing warning letters to him on Octo-
ber 17, 1982, and January 16, February 27, and March 1,
1983, because he joined , supported , or assisted the Union,
engaged in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection , and/or
because he filed a charge with the Boad in Case 8-CA-
14982-2 and testified at the subsequent hearing on June
14, 1982, and in order to discourage employees from en-
gaging in such activities or other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection
24 Hofmann 's protestations to the contrary are not credited Hofmann
was not a credible witness His demeanor impressed me as being that of a
man who could place a great deal under the umbrella of a "business deci-
sion" or "business necessity ," including being less than candid while
under oath
25 None of the predischarge alleged violations was serious enough
when considered alone to warrant discharge The discharge was alleged-
ly based on the cumulative record As noted above , the cumulative
record was flawed
The other discharges cited by Respondent are distinguishable in that
Thomas Cox and Donald Masters had previous discharges and did not
work during the full 9 months considered in their subsequent discharges
Robert Johnson had an absenteeism problem and repeatedly had his
wages garnisheed including instances either on the same day or within a
few days preceding his 3- and 5-day suspensions and his discharge, and
Robert Vernon and Michael Chisea had quite a few more warning letters
than Petros and both had attendance problems
4. Respondent violated Section 8(a)(1) of the Act on
April 12, 1983, by threatening Konstantine Petros with
discipline because he said he would file a grievance.
5. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be directed to, cease and desist
from enagaging in such conduct or like or related con-
duct and take affirmative action designed to effectuate
the policies of the Act. Further, Respondent will be di-
rected to make Konstantine Petros whole for any loss of
earnings, and benefits he may have suffered by reason of
the above-described unlawful actions, by making pay-
ments to him of a sum of money equal to that which he
normally would have earned had Respondent not en-
gaged in the above-described unlawful action, with back-
pay and interest thereon to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977).26 Re-
spondent will be directed (a) to preserve and make avail-
able to the Board, on request, all payroll records, and re-
ports, and all other records necessary and useful to de-
termine the amount of backpay due in compliance with
this Decision and Order; and (b) to expunge from Kon-
stantine Petros' personnel file all documents related to
those of Respondent's actions which were determined
above to be unlawful labor practices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed27
ORDER
The Respondent, Roadway Express, Inc., Toledo,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging protected concerted activity or dis-
couraging employees from availing themselves of the
Board's process of filing unfair labor practice charges by
unlawfully discharging any of its employees.
(b) Threatening any employees with reprisals to dis-
courage the filing of grievances.
(c) Unlawfully taking any disciplinary action against
any employee because the employee exercises rights
guaranteed under Section 7 of the Act or files charges
under the Act
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Konstantine Petros whole for any loss of pay
and benefits he may have suffered between September 16
26 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
27 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
ROADWAY EXPRESS
and October 11, 1982, by reason of Respondent's dis-
crimination against him with backpay and interest there-
on to be computed in the manner set forth above.
(b) Remove and expunge from Konstantine Petros'
personnel file all documents which relate to Respond-
ent's actions which have been found to be unfair labor
practices, and make whatever record changes are neces-
sary to negate the effect of these documents and Re-
spondent's unlawful actions.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Toledo, Ohio terminal copies of the at-
tached notice marked "Appendix."28 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
28 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
373
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unlawfully discharge or otherwise un-
lawfully discipline any of our employees or discriminate
against them in any manner because of their union affec-
tion or because they engage in union activities, protected
concerted activities, or because they use the Board's
processes or file unfair labor practices.
WE WILL NOT unlawfully threaten to discipline any of
our employees for engaging in protected concerted ac-
tivities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed by Section 7 of the National Labor
Relations Act to engage in self-organization, to bargain
collectively through a representative of their own choos-
ing, to act together for collective bargaining or other
mutual aid or protection, or to refrain from any and all
these things.
WE WILL make Konstantine Petros whole for any loss
of pay and benefits he may have suffered by reason of
Respondent's unlawful actions against him.
WE WILL remove and expunge from Konstantine
Petros' personnel file all documents which relate to Re-
spondent's actions regarding him which actions have
been found to be unfair labor practices and make what-
ever record changes are necessary to negate the effect of
these documents and Respondent's unlawful actions.
ROADWAY EXPRESS, INC.