Roadway Package System

National Labor Relations Board - Board Decisions

May 15, 1991

302 N.L.R.B. 961 (N.L.R.B. 1991)

961
302 NLRB No. 159
ROADWAY PACKAGE SYSTEM
1 The General Counsel and the Respondent have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In adopting the judge’s finding that Respondent unlawfully sought to pro-
hibit handbilling by off-duty employees, we note that the Respondent concedes
that it does not have a generalized rule prohibiting access to its property by
such employees. In any event, no such rule was disseminated among employ-
ees.
In adopting the judge’s finding that Respondent, through its hub manager,
Dale Jones, threatened employees with plant closing in violation of Sec.
8(a)(1), Chairman Stephens does not rely on Coradian Corp., 287 NLRB 1207
(1988), cited by the judge. Jones’ speech is clearly distinguishable from the
communication at issue in Coradian, in which Chairman Stephens dissented
from the finding of a violation. Id. at 1207 fn. 4. Members Devaney and
Raudabaugh agree that Jones’ speech is distinguishable from the communica-
tion in Coradian. They therefore find it unnecessary to express a view at this
time as to the validity of the relevant portion of that opinion.
In his decision, the judge inadvertently states that the employees handbilled
on either March 16, 27, or 28, 1989. (All dates are in 1989 unless otherwise
indicated.) The correct dates are March 26, 27, or 28.
2 Unlike other employees at the in-plant meeting who also made remarks
hostile to the Respondent’s antiunion speech and who were not disciplined in
any way, Rennick loudly and repeatedly disrupted the proceedings and refused
two direct orders to clock out. The protection of the Act for the expression
of union sentiments does not preclude an employer from disciplining an em-
ployee for such insubordinate conduct. See Marico Enterprises, 283 NLRB
726, 731–732 (1987).
3 Member Devaney would reverse the judge’s finding that the Respondent’s
calling the police concerning the employees’ handbilling violated Sec. 8(a)(1)
by ‘‘implicitly’’ threatening employees with arrest. He notes that the Respond-
ent’s sort manager explicitly told the police officer on one occasion that he
did not wish to make a formal complaint and that the officers never ordered
the employees to leave. Under these circumstances, Member Devaney would
not find the Respondent’s calling the police coercive.
Roadway Package System, Inc. and Chauffeurs,
Teamsters and Helpers Local 391, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 11–CA–13077, 11–
CA–13195, and 11–CA–13277
May 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 30, 1990, Administrative Law Judge J.
Pargen Robertson issued the attached decision. The
General Counsel and Respondent filed exceptions and
supporting briefs, and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 as modified and to adopt the recommended
Order as modified.
1. The judge found that the Respondent’s alleged
surveillance of the employees’ union activities violated
Section 8(a)(1). The evidence shows that prounion em-
ployees began handbilling activities in late January.
The complaint alleged and the judge found that, on
April 6, 1989, the Respondent’s sort manager, Butch
Riggleman, stood for 30 minutes by the guardhouse.
He was visible to all employees arriving to and depart-
ing from the plant, and he observed the handbillers’ ef-
forts to distribute prounion literature. The judge con-
cluded that ‘‘Riggleman’s conduct had the obvious and
foreseeable result of tending to interfere with the em-
ployees’ protected activities.’’ We disagree. By the
time of the incident, the employees had openly en-
gaged in handbilling activity for approximately 2-1/2
months. It is well settled that where, as here, employ-
ees are conducting their activities openly on or near
company premises, open observation of such activities
by an employer is not unlawful. Southwire Co., 277
NLRB 377, 378 (1985); Porta Systems Co., 238 NLRB
192 (1978). Therefore, we dismiss this allegation.
2. In adopting the judge’s finding that the Respond-
ent violated Section 8(a)(1) through its threat to call
the police in response to protected employee
handbilling activities, we rely on clear Board prece-
dent. All American Gourmet, 292 NLRB 1111 fn. 2
(1989). We do not agree with our dissenting colleague
that because the Respondent did not seek to have the
police actually arrest the handbillers, its unlawful act
of threatening to call the police in the first place was
rendered lawful.3
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3.
‘‘3. Respondent by threatening to close its facility if
its employees selected Chauffeurs, Teamsters and
Helpers Local 391, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, as their collective-bar-
gaining representative; by promulgating and attempting
to enforce a no-solicitation, no-distribution rule which
prohibited employees from soliciting or distributing
union literature during nonwork times in nonwork
areas; by threatening to call the police to its employees
unless the employees stopped their handbilling activi-
ties on behalf of the Union; and by threatening to evict
its employees because of their handbilling activities on
behalf of the Union engaged in conduct violative of
Section 8(a)(1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Road-
way Package System, Inc., Kernersville, North Caro-
lina, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following as paragraph 1(a).
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘(a) Engaging in conduct violative of Section
8(a)(1) of the Act by threatening to close its facility
if its employees selected Chauffeurs, Teamsters and
Helpers Local 391, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO, or any other labor or-
ganization, as their collective-bargaining representative;
by promulgating and attempting to enforce a no-solici-
tation, no-distribution rule which prohibits employees
from soliciting or distributing union literature during
nonwork times in nonwork areas; by threatening to call
the police to its employees unless the employees stop
their handbilling activities on behalf of the Union; and
by threatening to evict its employees because of their
handbilling activities on behalf of the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to close our facility if our
employees select Chauffeurs, Teamsters and Helpers
Local 391, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, or any other labor organization,
as their collective-bargaining representative.
WE WILL NOT promulgate and attempt to enforce a
no-solicitation, no-distribution rule which prohibits em-
ployees from soliciting or distributing union literature
during nonwork times in nonwork areas.
WE WILL NOT threaten to call the police to our em-
ployees unless the employees stop their handbilling ac-
tivities on behalf of the Union.
WE WILL NOT threaten to evict our employees be-
cause of their handbilling activities on behalf of the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
ROADWAY PACKAGE SYSTEM, INC.
L. Timmins, Esq. and Michael Jeannette, Esq., for the Gen-
eral Counsel.
John S. Burgin, Esq. and A. Bruce Clarke, Esq., of Raleigh,
North Carolina, for the Respondent.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge. This
matter was heard in Winston-Salem, North Carolina, on
March 13, 14, and 15, 1990.
The complaint, as amended, alleges that Respondent vio-
lated Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act (the Act).
In her brief counsel for the General Counsel moved to de-
lete the 8(a)(1) allegations ‘‘that occurred on April 7, 1989.’’
The April 7 allegations are included in paragraphs 8(b) and
(d) of the complaint. The General Counsel’s motion is grant-
ed. The April 7 allegations in paragraphs 8(b) and (d) are de-
leted.
Respondent admitted that it is a Delaware corporation with
a terminal located in Kernersville, North Carolina, where it
is engaged in the business of pickup and delivery of small
packages, and that during the past 12-month period, a rep-
resentative period, in the course and conduct of its business
operations, it performed services valued in excess of $50,000
in States other than North Carolina. Respondent admitted that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
Although Respondent, in its answer, denied that the
Charging Party (the Union) is, and has been at material
times, a labor organization within the meaning of Section
2(5) of the Act, at the hearing, it admitted the labor organiza-
tion allegation for purposes of this proceeding.
All parties were given the opportunity to file briefs. Briefs
were filed by the General Counsel and Respondent.
On the entire record, and after considering briefs filed by
the parties, I make the following determinations.
The parties stipulated that a petition was filed by the
Union for the hub employees of Respondent, in Case 11–
RC–5467, on December 9, 1987. The parties entered into a
stipulation for an election on January 22, 1988. An election
was held on February 5, 1988. The Union filed objections
and the Regional Director consolidated that matter for hear-
ing with unfair labor practice allegations in Case 11–CA–
12490, et al. On January 5, 1989, the parties agreed to a set-
tlement which included a rerun election following the posting
period for the agreed-to notice to employees.
The 8(a)(1) Allegations
The 8(a)(1) allegations include allegations that Respond-
ent, through its agents, threatened its employees with closure
of the terminal and loss of jobs because they engaged in
union activity; that Respondent orally promulgated a no-so-
licitation, no-distribution rule prohibiting solicitation and dis-
963ROADWAY PACKAGE SYSTEM
tribution of union literature in nonwork areas during
nonworktimes; that Respondent threatened employees with
arrest for engaging in union activities; that Respondent en-
gaged in surveillance of its employees’ union activities; and
that Respondent threatened to evict its employees because
they engaged in union activities.
The evidence regarding those allegations includes the fol-
lowing.
Respondent Threatened its Employees with Closure of
the Terminal and Loss of Jobs Because They Engaged
in Union Activity
John Creger, who is currently employed by Respondent as
a top pick off, testified about a meeting in mid-January 1989.
Dale Jones, who was hub manager at that time, spoke to
some six employees along with Creger’s coordinator, Jason
Grant:
Dale Jones stood up on the platform type. He said
good morning and that the Union people would be
coming in distributing cards and all. We didn’t want the
Union in that we were 40 million dollars in debt. If the
Union came in we would have to close because we
couldn’t keep up with UPS. He used McClean [sic] as
an example.
. . . .
Had the Union been fair to the men they could re-
duce the rates in order to compete and they would have
kept their jobs.
Greg Strong testified about a January 17, 1989 speech by
Dale Jones:
I specifically remember him saying, if the Union came
in the plant would close down and we would about
sixty million dollars in debt.
Dale Jones admitted meeting with employees on January
17, 1989, and again in late February or March 1989. Accord-
ing to Jones he never threatened to close the facility because
of the Union. Jones testified that on January 17 he read an
NLRB notice to employees. In late February or March, Jones
discussed McLain Trucking with the employees. He testified:
[T]he McClain [sic] incident was an example that we
were using or used this particular day to show that
we—that we felt as a company we were opposed to
Teamsters and they were trying to organize us, because
we were in direct competition with UPS, and our at our
young stage of the company we just couldn’t afford it.
We were in debt and that if we were organized that we
felt that the Teamsters best interest was not with the
employees of the company such as McClain [sic]
Trucking and that a similar incident that could happen
to RPS and never once said we would close the
Kernersville facility.
Respondent Orally Promulgated a No-Solicitation, No-
Distribution Rule Prohibiting Solicitation and
Distribution of Union Literature in Nonwork Areas
During Nonwork Times
Employee John Creger testified that he handbilled for the
Union between the public street and Respondent’s employee
parking lot beginning in late January 1989. Creger was
handbilling between 4:30 and 5 p.m. along with Teamsters
Representative Bobby Blakney and employees John Marlin
and Bobby Thomas. Creger 10 was not working at that time.
His workshift at that time ran from 4:30 to 9:30 a.m. Creger
testified that while they were handbilling,
Dale Jones had come out. He said hello, you know.
He said there’s a no solicitation, no distribution. You’re
not supposed to solicit or distribute while you’re on the
property. It wasn’t time for us to work. He had to ask
us to leave our handbilling on the side of the property.
. . . .
I recall we stayed where we were at. We moved up.
We handbilled a little bit and nobody seemed to take
the handbills, so we went ahead and left.
Creger testified that when Dale Jones told them they were
not supposed to distribute on the property, they moved closer
to the public road.
Dale Jones testified,
. . . They would block traffic from coming and going
from the two (2) sorts. I just went out and told the
three (3) individuals I said I don’t care what you pass
out to the employees. I said please don’t do it on prop-
erty. I said that, you know, as a company had a no so-
licitation policy and would you please just back up to
the side of the road.
Respondent Threatened Employees with Arrest for
Engaging in Union Activities
Employee John Creger, along with Bobby Blakney, Bobby
Thomas, and John Marlin handbilled for the Union again in
March 1989. Creger recalled that it was on either March 16,
27, or 28 and that it was also between 4:30 and 5 p.m.
Creger testified that he was off duty at the time:
Butch Riggleman, sort manager at the time, excuse
me. At first the guard come out and told us we would
have to go and we said no, we’re here to handbill.
. . . .
Butch had come out. He said that’s fine . That ‘‘you
all can handbill, but you have to do it off the prop-
erty.’’ We told them that this wouldn’t the property. He
said yes, it is. He said ‘‘if I have to I’ll get some cars
and block it where you all can’t handbill.’’ So, we said
‘‘we’re not doing anything wrong.’’
So, Butch said ‘‘do you want me to call the police’’
and we said yeah. So, he called the police and approxi-
mately ten minutes later the police had arrived. There
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were three police officers. One had went up to Butch
to talk for a few minutes. I don’t know what they said.
He proceeded to walk over to us.
He said he wasn’t here for the Union or the Com-
pany. That he was here just to enforce the laws. We
were talking about the note, you know, as far as the
handbilling procedures and he didn’t understand it.
. . . .
The police officer . . . .
but he said, more or less, you could handbill feet or 15
steps from the center of the line which, after he counted
it off, it put us right in the middle of the traffic going
to RPS. We knew we would block it . Our purpose
wasn’t to block nobody or to have nobody not go by
or come in. Our purpose was to handbill. So, me and
Bobby moved to the side within that 15, so they can
come back and forth.
. . . .
Riggleman said ‘‘Bobby, you’re off the property.’’
Bobby said ‘‘no, I’m not. I’m within the 15.’’ He said
‘‘well, I’m going to have to call the cops.’’ So, we said
go ahead.
Q. Were you on Company property at that point?
A. Yes, it was Company property, but it was the 15
steps the police officer said . Like I said, we knew that,
but the police officer said that was alright . That was
15. Like I said, when he counted off 15 that put us in
the road and our purpose wasn’t to block nobody, so
we moved over 15.
. . . .
[The police] had come back again. They went to talk
to Bobby and he came back to us and said well, he
don’t want to file—
. . . .
Butch didn’t want to file the restraint—not a re-
straining, but a complaint or take out a warrant against
him. Since he couldn’t take out a warrant there wasn’t
nothing Butch could do. At that time it was already
time—nobody was coming in or anything, so we just
dispersed, you know and went our own ways.
Butch Riggleman testified about the incident:
I told them that they needed to stay clear of the traf-
fic, because they were creating a bottleneck of people
leaving work and coming into work. There were on the
noon sort about forty or fifty people that were trying
to leave and with the twilight sort, the 4:30 sort, those
people coming to work was anywhere from sixty-five
to seventy-five people coming to work. So, there was
a very congest area and I asked them to stay off the
property. To allow the people to come to work, be on
time. I did not ever tell them they could not handbill.
Q. Did you ever stand and observe handbillers?
A. The only time I was in the presence of when the
people were handbilling, but that was only to keep
them from the congested area. To say that I stood there
and just watched for people, no, sir, I didn’t. When I
was out there it was for a particular reason, you know,
to stop the bottleneck.
On April 6, Creger, along with Bobby Blakney, John Mar-
lin, and Bobby Thomas, handbilled again at the same time,
4:30 to 5 p.m.
Richard Shelton had come out.
He was, at the time, our new terminal manager. He in-
troduced himself. He said ‘‘you’re not supposed to be
on property.’’ We were on that 15 which was on the
property that the police officer had said. We told him
we were here to handbill. He said ‘‘you have to be off
the property on the road.’’ Bobby Blakney asked him,
how are they supposed to handbill. Richard said, ‘‘just
come and tell them to come over here in a sarcastic
way. You know, just say hey, come over here, I have
something for you.’’ He asked did we want him to call
the police.
. . . .
We said yeah. So, he went in there and Butch
Riggleman had come out. When Butch Riggleman
come out people weren’t talking to us. They were, like,
moving on.
. . . .
At the time the police had showed up. Like I said,
this was a different police officer. He went to talk to
Butch first. Then, he came to us. He asked us, you
know, all he says, there’s nothing—
. . . .
The police officer and we told him we were within
the 15 steps that the fellow police officer had set the
previous time. He said ‘‘well, just stick to the 15.’’ He
didn’t know nothing about the book. Then he went on
his way. Butch had come out there again. Butch was
still out there. We were talking.
Q. Do you recall anything else?
A. Something between him and Bobby, they were
talking. He said he was going to call the police again.
So, the same police officer came out again and this
time he made a comment that he wasn’t going to come
out every five minutes.
Q. Who said that?
A. Police officer. He had went up to Butch first. He
asked Butch if he wanted to take a warrant and Butch
said no. He said there was nothing he could do. At that
time it was about time to go, so we packed up and left.
. . . .
Q. At anytime while you were handbilling, did you
block any incoming or outgoing traffic?
A. No, ma’am.
Sergeant Mike Brim of the Kernersville Police Department
testified in corroboration of the above testimony. Sergeant
Brim recalled that he came to Respondent’s facility after
being called on March 31 and April 6, 1989.
Richard Shelton, Kernersville hub manager since March
1989, testified that he went out to the handbillers and asked
them to move from Respondent’s property, where according
to Shelton they were blocking employees. Shelton testified
they refused and he told them he would have them removed.
However, according to Shelton, he left and returned to his
office without doing anything to have the handbillers re-
moved.
965ROADWAY PACKAGE SYSTEM
When asked if he actually saw the handbillers block traf-
fic, Shelton testified,
It was being constricted. Definitely constricted.
. . . .
I didn’t testify that there was any blockage. I didn’t
say one was or the other. As I told you, I was only
there for three (3) minutes.
. . . .
To the best of my recollection no one stopped while
I was there and blew their horn.
Respondent Engaged in Surveillance of its Employees’
Union Activities
Creger and John Marlin testified about Sort Manager
Butch Riggleman observing their handbilling in late March
and on April 6, 1989.
John Marlin’s testimony included:
Q. Directing your attention back to April 6, 1989, do
you recall if any Company superrvisors were standing
outside where you were handbilling?
A. Yes. Mr. Riggleman, he came out there.
Q. Do you recall where he was standing?
A. Standing right on the same place he was standing
the previous time, by the guardhouse.
Q. You say he was standing by the guardhouse, is
he then visible to employees coming and going from
the plant?
A. Yes, he is very visible because the employees
would walk in and pass right by him.
. . . .
Q. Prior to Mr. Riggleman’s arrival outside the guard
shack that you previously testified to, were employees
taking your handbills while you were handbilling?
A. Yes, the employees were taking the handbills.
The majority of them were taking handbills before
Butch came out there. . . . After Butch came out there
it seemed like fewer employees took them. Most of
them just ignored us and went on about their business.
As shown above, Butch Riggleman testified about the inci-
dent:
I told them that they needed to stay clear of the traf-
fic, because they were creating a bottleneck of people
leaving work and coming into work. There were on the
noon sort. . . .
Q. Did you ever stand and observe handbillers?
A. The only time I was in the presence of when the
people were handbilling, but that as only to keep them
from the congested area. To say that I stood there and
just watched for people, no, sir, I didn’t. When I was
out there it was for a particular reason, you know, to
stop the bottleneck.
Respondent Threatened to Evict its Employees Because
They Engaged in Union Activities
The evidence showed that employees John Creger, John
Marlin, and Bobby Thomas and Teamsters Representative
Bobby Blakney handbilled near the entrance to Respondent’s
Kernersville facility on April 6, 1989. Richard Shelton,
Kernersville hub manager since March 1989, testified that he
went out to the handbillers and asked them to move from
Respondent’s property, where according to Shelton they were
blocking employees. Shelton testified they refused and he
told them he would have them removed. However, according
to Shelton, he left and returned to his office without doing
anything to have the handbillers removed.
The 8(a)(1) and (3) Allegations
These allegations include that Respondent suspended its
employee Chris Fawlkes, and discharged employees Willie
Rennick and Chris Fawlkes because of their union activities.
Respondent used its Kernersville facility as a distribution
hub in its business of pickup and delivery of small packages.
Both the alleged discriminatees, as well as most of Respond-
ent’s employees at Kernersville, were part-time employees
that worked on unloading, loading, and sorting packages
which were either arriving at or departing from Respondent’s
Kernersville facility. Packages arriving at Kernersville were
unloaded then sorted through use of a conveyor system that
used several different belts. Packages were unloaded, sorted
to the various conveyors, and loaded by employees such as
Fawlkes and Rennick.
The General Counsel offered testimony regarding the issue
of animus. Respondent’s former regional manager in the
Carolina region from September 1986 through September
1988, Geoffrey Grenert, testified about mettings he attended
during Respondent’s regular quarterly regional meetings at
Pittsburgh, Pennsylvania, in 1987. Grenert testified that he
was told during those meetings, that there had been union ac-
tivity at one or two terminals in Detroit, and the Company
was concerned that union activity may spread to other termi-
nals. Grenert testified:
Basically, the company posture was we wanted to keep
the Union out. It wasn’t in the Company’s best inter-
ests. I can’t remember exactly the words that were spo-
ken or who spoke them, but it was, basically, we’re
going to do everything we can to keep the Union out.
People gave ideas, you know, we just polled all the
other regional managers and we went through all our
regions and all our terminals and talked about if this
was a strong Union hold or if this was not a strong
Union hold or what the philosophy of the contractors
was. What their posture was. It was basically a meeting
to set the tone that we would have a battle on our
hands and we were going to win the battle.
Grenert recalled that he noticed when the Teamsters began
organizing activity at Kernersville. He testified about em-
ployees that wore Teamsters shirts:
There were at least three. There may have been more,
but I didn’t see them. Charlie Farris was one. Chris
Fawlkes was another. There was a third that I saw, but
I can’t remember who he was.
Grenert admitted that he communicated Respondent’s posi-
tion in opposition to the Union, to its facilities at
Kernersville and throughout his region. Grenert recalled that
he was criticized by his supervisor, Vice President of Oper-
ations Ivan Hoffman, because Grenert called in one of the
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
primary union pushers, Charlie Farris, after the NLRB elec-
tion:
[Hoffman] screamed and yelled at me and called me
a bunch of nasty names for being stupid and talking to
Charlie Farris. Did I understand that I was putting the
entire election in jeopardy? He was screaming and
yelling at me.
. . . .
[Hoffman] told me that he wanted that little cock
sucker gone.
. . . .
Q. Other than that conversation you had with Mr.
Hoffman, specifically, about Mr. Farris, did Mr. Hoff-
man ever make any other remarks concerning pro-
Union employees?
A. Yeah, we had an election in Raleigh which the
Company won. There were five drivers who voted for
the Union and he told me he wanted them gone.
Chris Fawlkes
Chris Fawlkes was employed by Respondent from July 13,
1987, until he was discharged in August 1988. Fawlkes start-
ed out in the load area. He progressed from low pickoff to
primary sort. During the times in which Fawlkes was alleg-
edly discriminatorily suspended then discharged, Fawlkes
worked as a loader and as a primary sorter.
Fawlkes testified that he engaged in union activities from
about a month after he started working for Respondent. He
helped handbill before and after his work, he wore a union
T-shirt, and he talked to the dockworkers about signing
union cards.
Former Regional Manager Grenert testified that he and
other supervisory personnel at Kernersville learned of Chris
Fawlkes’ union activity because Fawlkes wore a Teamsters
T-shirt and Fawlkes was a close friend of known union advo-
cate Charlie Farris. Grenert recalled that Fawlkes’ name was
mentioned by other management and supervisory people as
being involved with the Union.
As shown above, Grenert testified about employees that
wore Teamsters shirts from among the approximately 120 to
150 sorter employees:
There were at least three. There may have been more,
but I didn’t see them. Charlie Farris was one. Chris
Fawlkes was another. There was a third that I saw, but
I can’t remember who he was.
The Chris Fawlkes Suspension
Fawlkes was suspended from work on one occasion. At
the hearing the General Counsel amended the complaint to
allege that the suspension occurred on June 21, 1988. Re-
spondent agreed that Fawlkes was suspended on that date.
Respondent contends that the suspension was not illegal.
At that time, and for several days before his suspension
according to his coordinator, Orlando Peterson, Chris
Fawlkes was temporarily assigned to job of loader. Accord-
ing to Sort Manager Butch Riggleman, he assigned Fawlkes
to loader because he needed additional loaders at that time.
Fawlkes was responsible to properly load the Columbia,
South Carolina outbound trailer. The job involved properly
selecting and loading the packages addressed to anyone with-
in the geographical area covered by Respondent’s Columbia
terminal.
Fawlkes was told by Sort Manager Butch Riggleman that
he was suspended because of a high number of misloads.
Fawlkes complained to Riggleman that the light had been out
in the trailer the night before, and that his coordinator had
told him to do the best he could and that the coordinator said
he would take responsibility for any misloads. According to
Fawlkes, the board showed that there had been either four
or five misloads by Fawlkes the night before.
Before his suspension, according to Fawlkes, he had no
prior difficulties with misloads. He testified that Sort Man-
ager Butch Riggleman told him that 10 or 11 misloads would
constitute excessive misloads.
Fawlkes’ coordinator, Orlando Peterson, testified that the
workload necessitated using Fawlkes to load trailers from
June 7 until Fawlkes was suspended for misloads on June 21,
1988. Peterson testified that Fawlkes consistently had a high
number of misloads during that period. According to Peter-
son he talked to Fawlkes about his misloads:
The day before (Fawlkes) was suspended I had
talked to him. I was explaining to him that he was on
the verge of getting suspended. Technically, I could
have suspended before because you are eligible to be
suspended if you have three misloads or more in a trail-
er. But see, I wanted to work with Chris and find out
what the problem was. Then I seen I wasn’t getting
anywhere. I told Chris ‘‘well you know, you have one
more chance. You know, if you can’t get it straight I’m
going to have to suspend you for a day.’’
Peterson during his testimony was shown the June 21 ‘‘In-
bound Misloads by Original Hub’’ report, which showed that
Fawlkes had 14 misloads. Peterson testified:
I honestly think it was a lot higher than that. It was
an astronomical number of misloads in that trailer.
Q. If the computer report was three pages in length,
about how many misloads would that reflect?
A. I would say at least sixty.
. . . .
I went on and had my regular pre-sort meeting. Then
after the meeting was over I pulled Chris to the side
and I showed him the document. He denied—he was
like, ‘‘There is no way I could have loaded sixty
misloads in this trailer.’’
And I was like, ‘‘Well, here it is on the printout,
Chris.’’ So, I said, ‘‘I’m sorry, I’m going to have to
suspend you for a day.’’
He said he wanted to talk with Butch. So, him and
Butch went to the office and they sat down and had a
talk.
Sort Manager Butch Riggleman testified about his knowl-
edge of the actual suspension of Chris Fawlkes:
I was in the unload area at the time [Fawlkes] re-
ported to Orlando to work as normal.
. . . .
Orlando informed him that he had in excess of fifty
or sixty misloads and that he was going to be sus-
pended. Orlando didn’t allow him to work that day. We
967ROADWAY PACKAGE SYSTEM
didn’t even allow him to punch in. And the two of
them came walking up into the unload area, and that
is where we met.
. . . .
I asked Chris exactly what the problem was. You
know, I said, ‘‘Excess of sixty misloads, what was the
problem?
. . . .
He told me that Orlando had said not to concern
himself with marking the packages, or reading the
packages. the light had been out. He said that Orlando
said to go ahead and load the trailer, but not to concern
himself with the quality of the load.
. . . .
I confronted Orlando with what Chris had said.
. . . .
Orlando . . . said, ‘‘Yes’’ [the light was out]. . . .
Orlando said, ‘‘No’’ [he did not tell Chris not to con-
cern himself with marking or reading the packages]
. . . . Orlando then said that he told Chris to read the
packages at the rear of the trailer where the overhead
lighting within the terminal, or the Hub itself, was suf-
ficient enough to be able to read the labels.
Peterson testified that the Inbound Misloads report re-
flected the misloads for the preceding day. Those reports
show as follows regarding the Columbia trailer which, ac-
cording to Peterson, was loaded by Fawlkes on the nights be-
fore the days shown below:
June 8, 1988 3 misloads
June 9 5 misloads
June 10 excused absence
June 13 6 misloads
June 14 7 misloads
June 15 5 misloads
June 16 6 misloads
June 17 10 misloads
June 20 7 misloads
June 21 14 misloads
During the above period from the column header ‘‘274
GRNB,’’ the Columbia trailer (which is indicated herein as
Columbia or Fawlkes’) showed six misloads on June 13.
That number was also shown by the Hick 286 trailer. On
June 13 the Charlotte trailer, ‘‘CHAR 282,’’ also showed six
misloads. No other trailer showed six or more misloads on
13.
On June 14, the most misloads on a particular trailer was
seven. Both Fawlkes’ trailer and the ‘‘RALD 276’’ trailer
had 7 misloads.
On June 15 the most misloads was recorded by the Char-
lotte trailer—9. Fawlkes’ and the ‘‘RALD 276’’ trailer
showed the next most misloads—5 each.
On June 16, the most misloads were shown by the RALD
276 trailer—9, then by the GREE 296 trailer—8, and then
by Fawlkes ’ trailer—6.
On June 17, the most misloads was shown by JOHN
376—13, then by Fawlkes’—10. The other Greensboro load-
ed trailers showed misloads on that night of 1, 2, 1, 6, 1,
1, 1, 4, 2, 3, and 8.
On June 20 the Greensboro trailer showed 8 misloads and
Fawlkes’ showed 7. The other Greensboro loaded trailers
showed misloads on that night of 2, 5, 4, 5, 2, 0, 4, 2, 6,
6, and 4.
On June 21 the ‘‘JOHN 376’’ trailer showed 17 misloads,
Fawlkes’ trailer showed 14, RALD 276 showed 13, and the
remaining Greensboro loaded trailers showed 0, 4, 0, 3, 0,
1, 2, 2, 5, and 2.
Orlando Peterson, Butch Riggleman, and former Hub
Manager Dale Jones, all recalled that the pulse report on
June 21 showed that the Columbia trailer had several com-
puter page sheets of misloads. Peterson recalled there were
over 60 misloads and Riggleman and Jones both recalled that
Fawlkes had some 50 or 60 misloads. In that regard Dale
Jones testified:
[A] good friend that was the Columbia manager at the
time, Bill Meader. He and I had always been sort of
in competition with other as far as bragging to each
other and stuff like that. He called me the next day
raising all kind of cane that I had sent him fifty (50)
or sixty (60) mis-loads and I couldn’t believe it. I
didn’t think that we could do it, so I pulled the pulse
off, I think, and saw I had two (2) or three pages of
mis-loads to Columbia. I called Meader back and
apologized to him.
The Discharge of Chris Fawlkes
Fawlkes was discharged on August 2, 1988, allegedly be-
cause he intentionally damaged a conveyor belt. The belt was
damaged because a metal slide (C-slide) used to direct pack-
ages on to a particular belt caught under a belt and ripped
the belt.
At that time Fawlkes was working the job of ‘‘primary
sorter.’’ In that job Fawlkes was responsible for activity re-
garding six conveyor belts. Two of the belts, the main belt
and the primary belt, were involved in conveying packages
to the primary sorters (such as Fawlkes), from the unload
area, where they were received from inbound trailers.
The other four conveyor belts were the outbound belts—
belts which conveyed packages to points involved in their
eventually being loaded on outbound trailers destined to
other facilities for eventual distribution to the addressee.
Those belts were designated as the white belt, the brown
belt, the red belt, and the green belt.
Both the white belt and the brown belt ran at foot level
to the primary sort employee and, in lieu of having the em-
ployee bend over to place packages on those belts, a ‘‘C-
slide’’ was used.
The ‘‘C-slide’’ is a ‘‘c’’-shaped piece of stainless steel
mounted on an angle iron frame. It is shaped and situated so
that packages will slide down it from waist level, where the
primary belt is located, to either the white or the brown out-
bound belt.
The red belt is located directly across from, and on the
level with, the primary belt. When the primary sort employee
faced the primary belt, the red belt was at waist level, di-
rectly behind him.
The green belt is also located behind the primary sort em-
ployee when he faces the primary belt, but the green belt is
above the level of the red belt, at approximately head level.
In order to place packages on the green belt, the primary
sorter has to turn around and lift the package up to head
level.
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fawlkes testified that the C-slide was damaged and, before
the incident, he and Sort Coordinator Darryl Cook tried un-
successfully to repair the slide. Fawlkes recalled,
I placed a package on the slide and it caused the
slide to go back and move back under the red belt and
it got caught under the red belt. Immediately when it
happened I hollered at the top of my voice for someone
to cut the red belt off. I went to the slide to try to pull
it out. With all my strength I could not pull the slide
out. So, I immediately had to run to the stop button to
cut the belts off.
Chris Fawlkes testified that Dale Jones came to Fawlkes
and asked Fawlkes what had happened. After Fawlkes ex-
plained how the C-slide damaged the red belt, Jones told him
they had fired another employee because he damaged a belt
and that Fawlkes was discharged.
Former Regional Manager Grenert was not involved in
Fawlkes’ discharge. He testified that he was told by super-
vision that Fawlkes was discharged because Fawlkes ‘‘had
deliberately torn up one of the sort belts.’’
The parties stipulated that Respondent was unaware of any
other employee who was disciplined by Respondent for dam-
age to a conveyor belt during 1987, 1988, and 1989.
Willie Rennick
Willie Rennick worked for Respondent from May 1988 to
February 8, 1989. His jobs included those of unloader, load-
er, bottom pick off, and top pick off. His last supervisor was
Jason Grant.
In January 1989, Rennick became involved in union activ-
ity. He wore a union hat. On one occasion during the week
before his discharge, Rennick wore a union sweater. He wore
a union T-shirt under his shirt, but the union T-shirt was not
visible. He distributed union handbills and spoke to other
employees about the Union. Rennick was on the union orga-
nizing committee.
According to Rennick, he spoke to his supervisor, Jason
Grant, about the Union. Rennick and Grant spoke in mid-
January. Rennick spoke in favor of the Union. Grant told
him that regardless of how he felt, that he, Grant, was part
of management and that management did not want the
Union. On another occasion, in early January, when Rennick
was passing out some union membership cards before work,
he had a conversation with a supervisor that he knows only
as Carl,
We talked about—I was passing out some Union mem-
bership cards one morning before work and he just
mentioned that, hey, you know, it’s time for us to get
to work. Later on he came up top and I was picking
off and he told me, hey, you know, keep the cards and
the activity kind of down because it’s not cool is basi-
cally what he said.
On January 30, 1989, and, again, on January 31, 1989, the
Union wrote Respondent’s hub manager, Dale Jones, that
employees including Willie Rennick, were actively involved
in the organizing activities of the Union. The parties stipu-
lated that Respondent received the above letters at some time
before February 8, 1989.
February 8, 1989
On February 8 Rennick was working 4 to 9 a.m. At a
meeting which included employees Antonio McKoy, Greg
Strong, Steve McKoy, Dwayne McPeake, John Creger,
Rennick, and Supervisor Jason Grant and, after a short while,
Sort Manager Fred Lapish, Grant read from the following
statement:
Good Morning,
We have the 1988 tax withholding refunds from the
tuition assistance we pay to package handlers. This re-
fund is possible due to a recent change in the federal
tax law that extended the non taxability of tuition as-
sistance for one year.
After our meeting, I will come to each of you to sign
the tuition assistance refund certification and give you
your check.
We have had some union activity in the past few
days where the Teamsters are trying to get you to sign
union cards. You are free to sign or not sign cards, but
when you do, you give up your rights to the union to
set dues, special assessments and even fine you for vio-
lating the Teamsters constitution.
We are opposed to the union because their real mo-
tive is to put us out of business and out of competition
with UPS.
The day Philadelphia opened, the Teamsters picketed
the entrance and tried to prevent us from operating. It
took a court order to allow us to commence operations.
We would hate to have something like that happen
here, but its a fact that with unions you run the risk of
strikes.
READ THE PHILADELPHIA STORY
Two years ago, the contractors at Detroit and Hunts-
ville voted in favor of the Teamsters in an election.
Those are the only two locations in RPS to do so. How
do they feel about their choice? Both terminals have pe-
titioned the Teamsters overwhelmingly to withdraw as
their union representative.
Show the petitions
Don’t make the same mistake they did and believe
wild promises the Teamsters can’t deliver. You are here
for an education—not to help UPS put us out of busi-
ness. Don’t sign a card unless you’re absolutely sure
you know what you’re doing. Are there any questions?
Thank-you. Let’s go to work.
Willie Rennick was discharged allegedly for disrupting the
above meeting. Rennick’s testimony as to what occurred in
that regard, includes the following:
I turned to [employee] Mr. Strong and I made a
comment. I said ‘‘Greg, you know [Jason Grant’s com-
ment that the Union would charge high dues and a per-
son could be dismissed or fined for not paying those
dues], that’s bullshit.’’ Greg returned the same com-
ment. He turned back to me. He said, yeah, he said ‘‘I
agree. That’s bullshit.’’ At this time Mr. Lapish that
was at the meeting at that time, he spoke up and he
969ROADWAY PACKAGE SYSTEM
pretty much singled me out. He said ‘‘Mr. Rennick,
you know, you need to be quiet. You’re disturbing the
proceedings.’’ At that time I did as he had I asked.
. . . .
At that point there was commotion. Somehow there
was—we wanted to find a pen. I can remember I asked
Mr. Creger for a pen. John asked Dwayne and it went
on like that. You know, whispering, we were looking
for a pen and I asked Mr. Strong and he said he didn’t
have a pen. At that time Mr. Lapish intervened again
and he told me to be quiet which, you know, he singled
me out because actually when he told me to be quiet
there was someone else speaking. So, I, you know, him
being the supervisor, I did. I was quiet.
Mr. Grant continued the meeting and at a point
where at that time that he told me to be quiet [Lapish]
also made mention that, ‘‘hey, look guys, there will be
a chance for everybody to ask questions or whatever at
the end of the meeting.’’
. . . .
Mr. Grant went on with the meeting. At one point
he was pretty much through with the meeting and he
had begun to pass out a page here which had a list of
names that was supposed to have been from a Detroit,
Michigan plant that—these people wanted the Unions
from the statement he read. These people wanted the
Union’s collective bargaining power to be taken away.
They didn’t want the Union representing them anymore.
That was being passed around.
. . . .
As he passed the names and the pictures around, Mr.
Creger began questioning him, Mr. Grant, as to how do
we know what’s going on in this picture (i.e., Xerox
document showing picture entitled Philadelphia Ter-
minal March 11, 1985).
. . . .
(Grant) couldn’t answer the question. At that point
me and M. Creger, we really weren’t satisfied with the
answer that was given in the picture. I intervened. I
asked Mr. Grant, again, I said ‘‘well, Mr. Grant, in the
picture it doesn’t seem to show what’s going on’’ and
at that point I was cut off by Mr. Lapish and told that
I needed to be quiet which I did.
At that point there was more conversation and what
going on, interaction between people. I tried to, again,
address Mr. Lapis and once I got that much out of my
mouth he told me hit the clock.
. . . .
At that point I started to the time clock and I had
taken, maybe, 15 or 20 steps or so and it dawned on
me that, you know, what am I doing. I mean and why
is he telling me to hit the clock. I then turned around
and went back just to find out what—are you firing me
or—because he didn’t make it clear. He just said hit the
clock.
On my way back Mr. Lapish told me, ‘‘Mr. Rennick,
you know, you need to leave. Get off the property.’’ He
got very emotional, very loud and he said ‘‘I’ll call the
Sheriff’s department.’’ I can remember the only words
that I was able to get in is ‘‘what’s wrong. What have
I done?’’ He was pretty much upset. He drew a lot of
attention to the area because he had gotten very loud.
Afterward Rennick was taken to Dale Jones’ office and
discharged.
Greg Strong testified in substantial agreement with
Rennick. However, Strong recalled that after he and Rennick
said bullshit and Lapish told Rennick to be quiet, Rennick
mumbled, ‘‘Okay, but I’ve got something to say.’’
Strong’s testimony regarding the February 8 meeting con-
tinued after the above comment by Rennick:
So, upon this time Jason [Grant] started back reading
and he read I’d say four or five more sentences and ev-
erybody is more or less talking now, while Jason is
reading. All seve n of us. And myself and Mr. Rennick
would look at each other, everybody else is finished
talking by now. Myself and Mr. Rennick look at each
other and say, you know, ‘‘I think that is a lie.’’ I say,
‘‘I think that is a lie, too.’’
So, from there maybe all seven of us talked for an-
other eight, ten seconds. Jason begins reading again.
And at this time Mr. Rennick begins asking all of us
for a pen. I’m not exactly sure what he wanted to write
down. Maybe he wanted to write down what Jason was
reading. Jason continues reading. And then about three
or four more sentences, Mr. Rennick stated, ‘‘I don’t
think what you’re saying is fair.’’
At this time Mr. Lapish asked Willie to be quiet
again. He points his finger at him, said, I told you to
hush. I want all of you to hush while I am paying you
and you’re on my timeclock.’’
So, everybody gets more or less pretty quiet from
there. And then . . . [Grant] is finished. . . . Willie
says, ‘‘I want to talk.’’
And at this time, this is the third time, Mr. Lapish—
I specifically remember his quote, ‘‘That is it, you’re
out of here. Hit the clock.’’
Willie proceeds halfway, maybe fifteen, twenty steps
to the timeclock, turns around and says, ‘‘I’m not
clocking out. You are going to have to clock me out
if you want me to leave.’’
Sort Manager Fred Lapish testified that he was not present
when Coordinator Jason Grant started his meeting on Feb-
ruary 8. Two coordinators were holding separate meetings
for their respective crews at the same time. Lapish, who is
the supervisor over the first-line supervisors (i.e., the coordi-
nators), testified that he walked over when he noticed that
Jason Grant’s
meeting seemed to be somewhat out of control. . . .
There was a lot of talking going on.
Determination as to Credibility
The 8(a)(1) Allegations
Several witnesses for the General Counsel testified about
the alleged 8(a)(1) activity. Those included John Creger,
John Marlin Jr., Sergeant Mike Brim of the Kernersville,
North Carolina police department, Bobby Lee Thomas, and
Greg Strong. In general, I found their testimony to be
straightforward and credible. There were some conflicts in
their testimony. However, I found those conflicts to be noth-
ing more than what would be normal and in accord with the
inaccuracies of memories. For example, John Creger recalled
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that, during a speech by Dale Jones, Jones referred to Re-
spondent being $40 million in debt. Greg Strong recalled that
Jones referred to Respondent being $60 million in debt.
I credit the testimony of Creger, Marlin, Brim, Thomas,
and Strong to the extent they do not conflict with each other.
Respondent Threatened its Employees with Closure of
the Terminal and Loss of Jobs Because They Engaged
in Union Activity
I am persuaded that testimony illustrating that former Hub
Manager Dale Jones threatened employees with plant closure
should be credited. Greg Strong and John Creger testified
that Jones threatened to close the facility because of the
Union in view of Respondent’s indebtedness.
Although Jones denied threatening to close, he admitted
that he did in fact compare Respondent’s situation with that
of McLain Trucking.
Jones’ testimony in that regard did not make sense. He
testified:
. . . the McClain [sic] incident was an example that we
were using or used this particular day to show that
we—that we felt as a company we were opposed to
Teamsters and they were trying to organize us, because
we were in direct competition with UPS, and our at our
young stage of the company we just couldn’t afford it.
We were in debt and that if we were organized that we
felt that the Teamsters best interest was not with the
employees of the company such as McClain [sic]
Trucking and that a similar incident that could happen
to RPS and never once said we would close the
Kernersville facility.
Jones did not explain what he meant by his admitted com-
ments that Respondent’s situation was similar to McLain’s,
or what he meant by his reference to Respondent’s competi-
tion with UPS, or by his reference to the debt problem Re-
spondent was facing.
I found both Creger and Strong testified credibly in regard
to Jones’ comments. Jones’ admissions are in accord with
what he allegedly said to the employees. Those admissions
show comments which give the clear impression that Re-
spondent could not continue in business if the Teamsters
were successful in view of their debt problem and their com-
petition with UPS. Jones admittedly said their problem was
similar to McLain who was forced to take drastic steps be-
cause of a union campaign.
I credit the testimony that Jones threatened the employees
with closure.
Respondent Orally Promulgated a No-Solicitation, No-
Distribution Rule Prohibiting Solicitation and
Distribution of Union Literature in Nonwork Areas
During Nonwork Times
The testimony, including the testimony of former Hub
Manager Dale Jones, shows that the employees were prohib-
ited from solicitation and distribution of handbills for the
Union in the nonwork areas at and near the parking lot.
Moreover, I am convinced there was no evidence of the
handbillers blocking traffic. Several witnesses, including
Butch Riggleman and Richard Shelton, indicated there was
no traffic actually blocked by the handbillers. Riggleman ac-
tually told the handbillers that he would block traffic by pull-
ing cars up in order to prevent the handbilling. Shelton testi-
fied that the traffic was constricted but was not actually
blocked.
Respondent Threatened Employees with Arrest for
Engaging in Union Activities
The evidence, including the testimony of the handbillers,
the Kernersville police, Butch Riggleman and Richard
Shelton, illustrated that the handbillers were threatened with
Respondent phoning the police. Butch Riggleman actually
phoned, or had others phone, the police on two occasion.
Respondent Engaged in Surveillance of its Employees’
Union Activities
The testimony of Butch Riggleman illustrates that he did
stand at the guard shack in full view of employees and ob-
serve the handbillers’ efforts to distribute prounion handbills.
Although Riggleman testifies that he was there to insure
there was no traffic blockage, there was no effort made by
him to show that he was engaging in anything other than
open surveillance.
Respondent Threatened to Evict its Employees Because
They Engaged in Union Activities
As to the April 6, 1989 handbilling, Hub Manager Richard
Shelton admitted that he did threaten to have the handbillers
removed if they did not move from Respondent’s property.
The 8(a)(1) and (3) Allegations
As to the allegations regarding personnel actions against
Fawlkes and Rennick, I have considered the credibility of
several material witnesses.
The Chris Fawlkes Allegations
Geoffrey Grenert
Geoffrey Grenert, Respondent’s regional manager until
September 1988, was called by the General Counsel. Grenert
impressed me as a sincere witness. I was impressed with his
demeanor. There were no alarming irregularities in his testi-
mony. His testimony is credited.
Chris Fawlkes
Chris Fawlkes’ testimony included several conflicts with
other evidence.
As to the matters involved in Fawlkes’ allegedly illegal
suspension, Fawlkes testified that he was transferred to load-
er for only the night preceding his suspension. However, his
coordinator, Orlando Peterson, and Sort Manager Butch
Riggleman both testified that Fawlkes had been transferred to
loader over a week before his suspension.
The timecards in evidence support the testimony of
Riggleman and Peterson. Those timecards show that Fawlkes
worked as a loader from June 7 until after his suspension on
June 21.
Fawlkes testified that on the day of his suspension he no-
ticed that he was listed as having around four or five
misloads. Again, Fawlkes’ testimony conflicts with that of
Peterson and Riggleman. Both Peterson and Riggleman testi-
971ROADWAY PACKAGE SYSTEM
fied that the pulse reports showed that Fawlkes had around
60 misloads on the evening before. As to that testimony the
records are not in evidence. Butch Riggleman testified that
that pulse report had been destroyed. The regional misload
reports, which are in evidence, disagreed with Fawlkes and
with, according to Peterson and Riggleman, the pulse reports.
The misload reports show that Fawlkes had 14 misloads on
the night before his suspension. That report is in agreement
with a pretrial affidavit given by Chris Fawlkes. In that affi-
davit Fawlkes testified,
For the trailer I helped load on July 12th [sic], there
were about fourteen or fifteen misloads.
Fawlkes changed his testimony under cross-examination in
order to explain the conflict with his pretrial affidavit, to re-
flect that although the misloads shown on the blackboard
were 4 or 5, Riggleman told him that there were about 14
or 15 misloads. However, that testimony conflicted with
Fawlkes’ direct testimony where he testified that Riggleman
did not mention a specific number of misloads but said only,
that Fawlkes had a high rate of misloads.
Fawlkes also testified, in conflict with Orlando Peterson
and Butch Riggleman, that he was never cautioned or warned
about misloads before his suspension. Both Riggleman and
Peterson said they each talked to Fawlkes about misloads be-
fore his suspension.
In view of the above I am unable to credit Fawlkes’ testi-
mony.
Orlando Peterson
Orlando Peterson testified about the suspension of Chris
Fawlkes. Peterson’s testimony, when compared with other
evidence, appeared to involve exaggerations.
For example, Peterson testified that it was Respondent’s
policy to suspend loaders when the loader was responsible
for three or more misloads during a shift. However, Re-
spondent’s business records illustrated that was not Respond-
ent’s practice. An examination of Respondent’s misload re-
ports for the period immediately before Fawlkes’ suspension
shows that from June 7 to 21, for the 13 trailers loaded at
Kernersville, there were 7 cases of 3 or more misloads on
June 7 (report of June 8); 7 cases (again) of 3 or more
misloads on June 8; 7 cases (again) of 3 or more misloads
on June 9; 9 cases of 3 or more misloads on June 12; 8 cases
of 3 or more misloads on June 13; 5 cases of 3 or more
misloads on June 14; 9 cases of 3 or more misloads on June
15; 6 cases of 3 or more misloads on June 16; 9 cases of
3 or more misloads on June 19; and 6 cases of 3 or more
misloads on June 20.
If, as Peterson testified, Respondent’s policy was to sus-
pend anyone with three or more misloads, it is apparent that
Respondent would have suspended from 5 to 9 employees
every night during the period from June 7 through 20. How-
ever, Respondent did not suspend anyone other than Chris
Fawlkes, during that period of time.
Peterson testified that he would suspend an employee on
the second occasion of 10 or 15 misloads during a shift. Of
course, that testimony conflicts with Peterson’s testimony
that it was Respondent’s policy to suspend upon three
misloads.
Moreover, Peterson’s testimony regarding suspension for
10 misloads on 2 occasions does not square with Respond-
ent’s misload records. Peterson testified that he supervised
the loading of three trailers. Peterson’s testimony regarding
suspensions of employees under his supervision does not in-
clude reference to anyone he suspended specifically because
the employee had 10 or more misloads on two occasions. As
to all 13 trailers, Respondent’s June 7 through 20 misload re-
ports, for example, show that at least 1 other loader had
more than 10 misloads on 2 occasions, but was not sus-
pended. Trailer ‘‘JOHN 376’’ showed 13 misloads on June
16 and 7 misloads on June 21. Peterson testified that he and
the other coordinators followed the same rules and regula-
tions and that they cleared their disciplinary actions with
their supervisor, Butch Riggleman. Therefore, the treatment
of loaders should follow similar paths between coordinators.
Peterson’s testimony that a loader would be suspended for 2
occasions of having 10 or more misloads is in conflict with
the above-mentioned evidence regarding loading trailer
JOHN 376.
The above shows that Respondent’s practice was substan-
tially different from what was pictured in Peterson’s testi-
mony. Peterson was either testifying without regard to actual
practice or his understanding of the practice was erroneous.
If he lacked knowledge of the actual practice he should have
testified that was the case. In either situation, whether by
knowingly testifying as to matters of which he lacked knowl-
edge, or by mistake, the above illustrates that Orlando Peter-
son’s recollection seriously conflicted with more reliable evi-
dence and was unreliable.
In view of my finding, I am unable to credit Peterson.
Butch Riggleman
I found the testimony of Sort Manager Butch Riggleman
to be generally reliable. Although Riggleman’s testimony re-
garding the 8(a)(1) allegations was not in full accord with
other evidence, the differences were no greater than dif-
ferences in the testimony of various witnesses of the General
Counsel.
Riggleman appeared to testify truthfully. I was impressed
with his demeanor and, to the extent his testimony does not
conflict with evidence which I find to be more credible, I
credit the testimony of Riggleman.
The Two Misload Report Forms
There was testimony, primarily from Butch Riggleman and
Orlando Peterson, to the effect that Respondent received two
misload reports. According to both Riggleman and Peterson,
the sort managers and coordinators routinely received a re-
port called the pulse report. The pulse report was customarily
received before the beginning of each loader’s next shift.
Routinely, the pulse report was the only report seen by coor-
dinators.
According to Riggleman, Peterson, and Hub Manager Dale
Jones, the pulse report for June 21 showed that Fawlkes had
some 50 or 60 misloads.
In addition to the pulse report, there is also prepared an-
other inbound misload report that is routinely received much
later than the pulse report. That report, which is in evidence,
shows that Fawlkes had 14 misloads on June 20. Riggleman
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
testified that someone for Respondent may have intentionally
misrepresented the number of misloads as 14 rather than 60.
As shown above, I found the testimony of Butch
Riggleman to be generally credible. In that regard I do credit
Riggleman’s versions of conversations he had regarding the
suspension of Chris Fawlkes including portions of those con-
versations in which he referred to the missing pulse reports.
The two-report issue raises concern as to whether Fawlkes
had 14 or 50, 60 or so misloads on June 20. However, the
record showed that Respondent does maintain both types of
misload reports. Pulse reports were available even though the
particular pulse report for the June 20 shift was missing.
Although I am concerned, I am unable to determine that
evidence to the effect that the June 20 pulse report was inad-
vertently destroyed is unreliable.
Was Fawlkes Cautioned About Misloads Before
His Suspension?
Orlando Peterson, who I found to be less than reliable, tes-
tified that he cautioned and eventually suspended Fawlkes,
because Fawlkes continued to show an unacceptable number
of misloads each night. Fawlkes, who was equally unreliable
as a witness, testified that he was not cautioned about
misloads before his suspension. I would not credit either Pe-
terson or Fawlkes. However, Riggleman, who was more reli-
able, also testified that Fawlkes was cautioned by him re-
garding his continuous misload problem during his June
1988 loader assignment. In that regard, both Riggleman and
Peterson are supported by the misload reports in evidence.
Those reports show that although Fawlkes did not lead in
misloads on any particular evening, he did continuously run
an above average number of misloads. In view of the fact
that Peterson was an experienced employee, who had pro-
gressed beyond the position of loader, I credit the testimony
that Riggleman and Peterson found Fawlkes’ misloads unac-
ceptable during the entire period of his June assignment.
In that regard I have outlined evidence regarding Fawlkes’
misload record and I have included, infra, a chart comparing
Fawlkes’ record with that of other loaders. Fawlkes, unlike
other loaders, failed to go through a single shift with less
than three misloads. From the second day of his loader as-
signment, he failed to show less than five misloads on a sin-
gle shift.
Therefore, I find that the record supports the testimony of
Riggleman and I credit his and Peterson’s testimony in that
regard.
Did Fawlkes Intentionally Place the C-Slide
on the Belt?
In view of my determination that Chris Fawlkes was not
reliable as a witness, I am unable to credit his testimony that
the C-slide fell on to the belt because of a defect. There was
no other evidence to support that testimony.
Moreover, the testimony of former Hub Manager Dale
Jones that he and Fawlkes examined all the slides in the fa-
cility and were unable to find one with a defect which would
cause it to fall was not rebutted. I credit that testimony.
I notice that Sort Manager Butch Riggleman testified that
Fawlkes gave him a different explanation of why the C-slide
was on the conveyor belt, than the version which, according
to Dale Jones, was given by Fawlkes to Jones. Riggleman
testified that Fawlkes told him that he was trying to move
the slide. Jones, on the other hand, testified that Fawlkes told
him that the slide accidently fell onto the belt because of de-
fects in the slide.
The above evidence is not in conflict. Riggleman was tes-
tifying about what Fawlke’s told him shortly after the slide
tore the conveyor belt. Jones was not present during that
conversation.
At some time later, according to Jones, he asked and
Fawlkes responded with a different version of why the slide
was on the belt. Fawlkes allegedly told Jones that the slide
fell onto the belt. Riggleman was not present during that
conversation between Jones and Fawlkes.
Fawlkes did not testify after Riggleman and Jones. There-
fore, his testimony did not include efforts to either explain
the different versions allegedly offered to Riggleman and
Jones, or to deny that he gave different versions.
There is one particular area of Fawlkes’ testimony which
was not rebutted. Fawlkes’ testimony about the incident
which led to his discharge, included the following testimony:
I told [my coordinator] Darryl Cook that the slide
was damaged. At one point he tried to help fix the
slide. He took some cardboard and set it down on the
sort aisle and then set the slide on top of it. This did
not provide any help because the weight of that slide
setting on the cardboard flattened the cardboard and the
slide just set where it normally had been.
In view of the failure of Cook, a supervisor, to testify, I
credit this testimony by Fawlkes. That testimony shows that
both Fawlkes and Cook felt there was something defective
in one of Fawlkes’ slides.
However, an examination of Fawlkes’ testimony shows
that he never made Butch Riggleman or Dale Jones aware
that both he and Coordinator Cook had worked to repair the
slide, or that Cook could possibly corroborate Fawlkes’ as-
sertions about the slide.
According to Fawlkes, he was told immediately by
Riggleman that he had bought a belt and shortly thereafter,
by Jones, that he was fired. Moreover, as shown above, it
was not rebutted that Jones and Fawlkes went around after
the incident, looking for the slide that Fawlkes alleged was
faulty and had caused the rip. Despite all that, Fawlkes, by
his own testimony, never said anything about his coordinator,
Daryl Cook, being aware of problems with his slide.
Willie Rennick
The testimony of Rennick was corroborated by testimony
of several other witnesses including Greg Strong and John
Creger. In substantial measure Rennick was also corroborated
by Respondent’s witnesses.
Sort Manager Fred Lapish testified regarding his involve-
ment in the incidents of February 8, 1989. Lapish, unlike
Rennick, recalled that Rennick said ‘‘bullshit’’ on two sepa-
rate occasions during Jason Grant’s address to Grant’s em-
ployees. Lapish also testified that only Rennick persisted in
making comments after he, Lapish, told the employees to
keep quiet.
I found Rennick to be a straightforward, direct witness.
Lapish, and the other witnesses to the February 8 incident,
also appeared to be straightforward and direct. I am con-
vinced that all those witnesses testified to the best of their
973ROADWAY PACKAGE SYSTEM
recollections. There were differences in their recollections
but I do not find those differences to be anything more than
normal variations in different recollections, especially in
view of the fact that events developed rapidly and excitedly
on February 8.
Findings
As shown above the record evidence illustrated that Re-
spondent opposed the employees’ union organizing activities.
Respondent’s animus was demonstrated through the testi-
mony of former Regional Manager Grenert and through evi-
dence of the 8(a)(1) allegations.
Geoffrey Grenert, Respondent’s former regional manager,
testified about 1987 and 1988. Grenert recalled that he no-
ticed when the Teamsters began organizing activity at
Kernersville. As shown above, that activity included a peti-
tion which was filed in December 1987. Grenert testified
about employees that wore Teamsters shirts:
There were at least three. There may have been more,
but I didn’t see them. Charlie Farris was one. Chris
Fawlkes was another. There was a third that I saw, but
I can’t remember who he as.
Grenert admitted that he communicated Respondent’s posi-
tion, in opposition to the Union, to its facilities at
Kernersville and throughout his region. Grenert recalled that
he was criticized by his supervisor, Vice President of Oper-
ations Ivan Hoffman, because Grenert called in one of the
primary union pushers, Charlie Farris, after the NLRB elec-
tion:
[Hoffman] screamed and yelled at me and called me
a bunch of nasty names for being stupid and talking to
Charlie Farris. Did I understand that I was putting the
entire election in jeopardy? He was screaming and
yelling at me.
. . . .
[Hoffman] told me that he wanted that little cock
sucker gone.
. . . .
Q. Other than that conversation you had with Mr.
Hoffman, specifically, about Mr. Farris, did Mr. Hoff-
man ever make any other remarks concerning pro-
Union employees?
A. Yeah, we had an election in Raleigh which the
Company won. There were five drivers who voted for
the Union and he told me he wanted them gone.
Section 8(a)(1) Allegations
Threat to Close
The credited evidence illustrated that Hub Manager Dale
Jones made the following comment during a speech to em-
ployees during mid-January 1989:
Dale Jones stood up on the platform type. He said good
morning and that the Union people would be coming in
distributing cards and all. We didn’t want the Union in
that we were 40 million dollars in debt. If the Union
came in we would have to close because we couldn’t
keep up with UPS. He used McClean [sic] as an exam-
ple.
The above proves that Respondent threatened its employ-
ees that it would close the Kernersville hub if the employees
selected the Teamsters as their bargaining representative.
That constitutes a violation of Section 8(a)(1) of the Act. Co-
radian Corp., 287 NLRB 1207 (1988); Taylor Chair Co.,
292 NLRB 658 (1989).
No-Solicitation, No-Distribution
The credited evidence illustrates that Respondent promul-
gated and tried to enforce an illegal no-solicitation, no-dis-
tribution rule against off-duty employees that were soliciting
and handbilling in a nonwork area. The employees, along
with a representative from the Teamsters, passed out
prounion handbills to employees as they entered and left Re-
spondent’s Kernersville hub, on occasions beginning in late
January 1989. The following is typical of the testimony of
how Respondent reacted to its employees handbilling:
Dale Jones had come out. He said hello, you know.
He said there’s a no solicitation, no distribution. You’re
not supposed to solicit or distribute while you’re on the
property. It wasn’t time for us to work. He had to ask
us to leave our handbilling on the side of the property.
Several employees testified that before the above incident,
they were not aware of any no-solicitation or no-distribution
rule.
By promulgating and attempting to enforce a rule prohib-
iting its employees to solicit and listribute union material
during nonwork times in nonwork areas, Respondent violated
Section 8(a)(1) of the Act. Stoddard-Quirk Mfg. Co., 138
NLRB 615 (1962); see also Southern Maryland Hospital
Center, 293 NLRB 1209 (1989), where the issue is discussed
even though health care cases are somewhat different than
the instant situation.
Threat of Arrest
Respondent, by repeatedly threatening to call, and actually
phoning, the police, implicitly threatened to have its employ-
ees arrested because they engaged in the protected activities
of handbilling for the Union. The following testimony is typ-
ical of the credited evidence which shows how Respondent
reacted on several occasions:
Butch had come out. He said that’s fine. That ‘‘you
all can handbill, but you have to do it off the prop-
erty.’’ We told them that this wouldn’t the property. He
said yes, it is. He said ‘‘if I have to I’ll get some cars
and block it where you all can’t handbill.’’ So, we said
we’re not doing any thing wrong.
So, Butch said ‘‘do you want me to call the police’’
and we said yeah. So, he called the police and approxi-
mately ten minutes later the police had arrived. There
were three police officers. One had went up to Butch
to talk for a few minutes. I don’t know what they said.
He proceeded to walk over to us.
The evidence, which was fully litigated, actually illustrated
that Respondent threatened to call the police rather than
threatened to arrest. By threatening to call the police to its
employees because of their protected union activities, Re-
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent engaged in activity violative of Section 8(a)(1) of
the Act. All American Gourmet, 292 NLRB 1111 (1989);
Thriftway Supermarket, 294 NLRB 173 (1989).
Surveillance of Employees’ Union Activities
The credited evidence showed that Sort Manager Butch
Riggleman stood near the guard shack, in a position where
he was noticeable to employees entering and leaving the hub,
and observed employees engaged in handbilling of union ma-
terial. Riggleman offered no explanation to the employees as
to why he was standing and observing their activities.
Riggleman’s conduct had the obvious and foreseeable result
of tending to interfere with the employees’ protected activi-
ties, and constitutes violation of Section 8(a)(1) of the Act.
Southern Maryland Hospital Center, supra.
Threat to Evict
Respondent’s hub manager admittedly threatened to evict
handbilling employees.
Richard Shelton, Kernersville hub manager since March
1989, testified that he went out to the handbilling employees
and asked them to move from Respondent’s property.
Shelton testified they refused and he told them he would
have them removed.
Shelton’s actions constitute violations of Section 8(a)(1).
The 8(a)(3) Allegations
Chris Fawlkes
Chris Fawlkes was employed by Respondent from July 13,
1987, until he was discharged in August 1988. Fawlkes start-
ed out in the load area.
Fawlkes testified that he engaged in union activities from
about a month after he started working for Respondent. He
helped handbill before and after his work, he wore a union
T-shirt and he talked to the dock workers about signing
union cards.
Former Regional Manager Grenert testified that he and
other supervisory personnel at Kernersville learned of Chris
Fawlkes’ union activity because Fawlkes wore a Teamsters
T-shirt and Fawlkes was a close friend of known union advo-
cate Charlie Farris. Grenert recalled that Fawlkes’ name was
mentioned by other management and supervisory people as
being involved with the Union.
As shown above, Grenert testified about employees that
wore Teamsters shirts from among the approximately 120 to
150 sorter employees:
There were at least three. There may have been more,
but I didn’t see them. Charlie Farris was one. Chris
Fawlkes was another. There was a third that I saw, but
I can’t remember who he was.
Additionally, as shown above, Grenert associated Fawlkes’
union activities with the union activities of Charlie Farris.
His testimony reveals that Grenert was told by his super-
visor, Ivan Hoffman, to get rid of Farris.
Suspension of Chris Fawlkes
Fawlkes’ suspension as allegedly based on high misloads
while he was assigned to load trailers from June 7 through
June 20, 1988.
As shown above, according to Respondent’s supervisors,
there were two reports used in checking misloads. The so-
called pulse report was a computer printout that arrived at
Kernersville shortly after the Kernersville-loaded trailer ar-
rived at its destination. Subsequently, the regional misload
report was received, but, according to the testimony of Sort
Manager Butch Riggleman, was not routinely seen by the co-
ordinators and sort managers.
According to both Orlando Peterson, Fawlkes’ immediate
supervisor, and Peterson’s supervisor, Sort Manager Butch
Riggleman, at the time of the decision to suspend Fawlkes,
Respondent had in its possession only the pulse report. Al-
though the regional misload report was received in evidence,
the pulse report was, according to Riggleman, destroyed.
Both Riggleman and Peterson testified that even though the
regional misload report, which was received later, showed
only 14 misloads on the night before by Fawlkes, the pulse
report showed that Fawlkes had some 60 misloads.
Riggleman and Peterson testified that it was because of the
pulse report showing some 60 misloads that they imme-
diately suspended Fawlkes.
As shown above, there were strong disputes in testimony
regarding what was said when Fawlkes was suspended. In
view of my credibility findings, I credit Butch Riggleman’s
version of that incident:
I was in the unload area at the time [Fawlkes] re-
ported to Orlando to work as normal.
. . . .
Orlando informed him that he had in excess of fifty
or sixty misloads and that he was going to be sus-
pended. Orlando didn’t allow him to work that day. We
didn’t even allow him to punch in. And the two of
them came walking up into the unload area, and that
is where we met.
. . . .
I asked Chris exactly what the problem was. You
know, I said, ‘‘Excess ff sixty misloads, what was the
problem?’’
. . . .
He told me that Orlando had said not to concern
himself with marking the packages, or reading the
packages. The light had been out. He said that Orlando
said to go ahead and load the trailer, but not to concern
himself with the quality of the load.
. . . .
I confronted Orlando with what Chris had said.
. . . .
Orlando . . . said, ‘‘Yes’’ [the light was out]. . . .
Orlando said, ‘‘No’’ [he did not tell Chris not to con-
cern himself with marking or reading the pack-
ages]. . . . Orlando then said that he told Chris to read
the packages at the rear of the trailer where the over-
head lighting within the terminal, or the Hub itself, was
sufficient enough to be able to read the labels.
Orlando Peterson testified that other employees have been
disciplined because of misload problems. Peterson testified
that Kelvey Green was suspended in 1988 because of his bad
attitude and misload problem. Peterson testified:
I had nothing but problems with Kelvey. Kelvey
would come in and he would just have a lot of
975ROADWAY PACKAGE SYSTEM
misloads and would talk to him. I explained to him
that, you know, ‘‘You’re eligible to be suspended.’’
Then I would give him another chance. The next day,
the same thing. So, I had to suspend Kelvey.
Q. Do you remember about how many misloads he
had that caused his suspension?
A. Kelvey, he had, I’d say, somewhere in the double
figures. It was [not] sixty or anything like that. I’d say
something like fifteen or sixteen.
Q. Do you have any record today that would show
Kelvey Green had fifteen or sixteen misloads?
A. It was documented. See, when someone is termi-
nated or either switched to a different area, that I would
turn that record over to that supervisor.
Q. And you don’t know that that is kept anywhere
today.
A. I’m not sure.
Peterson testified that he suspended Napoleon Crowell be-
cause of a misload problem. Crowell had problems after
being hired but he improved. However, according to Peter-
son,
[Crowell] started to improve then it seems like a couple
of days later he just started going downhill. And ex-
plained to him that he was eligible to be suspended.
Then that next day he had more misloads, so I sus-
pended him for a day.
According to Peterson he suspended Jeffrey Webb when
the trailer Webb was responsible for loading had 30
misloads. Webb was not given a second chance because of
the large number of misloads on that occasion.
Peterson recalled that others were also suspended for
misloads, but he could not recall their names.
Sort Manager Butch Riggleman testified that Respondent
has disciplined a number of employees because of misload
problems.
On December 21, 1987, Respondent discharged Brian Mil-
ler. According to Riggleman, Miller placed a large number
of packages destined for various terminals into the closest
truck, the Greensboro trailer. Riggleman testified that Mil-
ler’s misloads exceeded 20.
Russell Morris was suspended on two separate occasions,
then discharged for misloads. According to Riggleman, Mor-
ris felt he should have been promoted to pickoff. Morris
misloaded 15 or 20 misloads to Raleigh on 2 separate occa-
sions. He was suspended on each occasion probably in May
1988 and, again, in September or October 1988.
Terry Darren Drane was suspended in August 1988 for
misloading the Jacksonville trailer. Riggleman testified that
Drane misloaded a small bags package containing 25 to 30
individual packages.
Riggleman identified a pay and work report which was
maintained by a coordinator on employee Jody Swaim.
Riggleman testified that although coordinators should main-
tain pay and work reports, they do so infrequently. The pay
and work report on Swaim shows that he was warned on
June 13, 1988, for four misloads on trailer 284.
Butch Riggleman also identified a number of records
showing employees disciplined for performance-related prob-
lems. Riggleman testified that usually indicated a misload
problem. However, Riggleman said that he was not person-
ally familiar with the employees involved in these records.
The records show 11 employees marked ‘‘T-11,’’ which sig-
nifies performance-related problems. Most of those employ-
ees were discharged.
Additionally, I shall consider how did Fawlkes’ perform-
ance compare with the performance of other loaders during
the period in question.
As indicated above, the pulse reports for the time of
Fawlkes’ suspension are not in evidence. Riggleman testified
that the pulse reports for that time were evidently destroyed.
For that reason it is not possible to compare pulse reports on
the various loaders.
As to the regional misload reports, I notice that Respond-
ent’s inbound misload reports show, as to some of the trail-
ers loaded from June 7 (misload report of June 8) through
June 20 (report of June 21—Fawlkes’ trailer was Colb 292):
Date Colb 292 Hick 286 Char 282 Rald 276 Gree 296 John 376 Grnb 274
6/8 3 0 5 3 7 3 0
6/9 5 2 3 2 8 9 12
6/10 absent 6 3 0 2 3 4
6/13 6 6 6 0 3 5 4
6/14 7 0 6 7 1 0 4
6/15 5 2 9 5 3 0 0
6/16 6 2 4 9 8 4 0
6/17 10 2 1 6 8 13 1
6/20 7 2 2 4 6 4 8
6/21 14 2 0 13 2 17 8
Total 63 24 39 49 48 58 41
The above chart outlines the number of misloads recorded
on Respondent’s inbound misload reports for the days that,
according to Orlando Peterson, Fawlkes was assigned to
load.
As to misloads which led all others on designated dates,
I have overprinted and underlined the respective misloads re-
corded for that date. On days when several tied for the most
misloads, I have underlined the number but have not over-
printed that number.
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The above shows that Fawlkes was not the clear leader on
any day during his period of loading. Fawlkes tied for the
most misloads on June 13 and 14. Fawlkes led with the total
number of misloads for the entire period.
Fawlkes had an average of seven misloads each shift for
the nine shifts he worked as loader before his suspension.
His was the highest average number of misloads for that pe-
riod. The second highest misload average was John 376 with
an average over 10 nights of 5.8 misloads per shift.
Trailer John 376 led in misloads on June 17 and 21. Trail-
er Grnb led in misloads on June 9 and 20.
The above evidence illustrates that Respondent was aware
of the union activities of Chris Fawlkes; that Respondent was
motivated by antiunion animus; and that Respondent had ex-
pressed, through a vice president to the then regional man-
ager, a desire to get rid of some of its union supporters al-
though, as shown above, not specifically Fawlkes.
However, as shown above, due to numerous inconsist-
encies and conflicts in his testimony, I cannot credit
Fawlkes’ testimony.
The credited testimony shows that Fawlkes did dem-
onstrate a consistent misload problem from June 7, when he
was reassigned to loader, through June 20. I credited testi-
mony that Fawlkes was counseled about that misload prob-
lem and I credited testimony that Butch Riggleman and Or-
lando Peterson, the two supervisors involved in the decision
to suspend Fawlkes, believed that Fawlkes had caused an in-
ordinate number of misloads on June 20 (i.e., some 50 or 60
misloads).
The record shows that Respondent has routinely suspended
employees with misload problems less significant than
Fawlkes’.
The law does not protect employees from discipline be-
cause they engage in union activity. What the law does is
hold out protection from discriminatory discipline because of
employees’ union activity. Here, although the case is close,
I am unable to find that Fawlkes was treated in a discrimina-
tory fashion.
Even when the pulse report is ignored and consideration
is focused on the inbound misload reports, the evidence
shows that Chris Fawlkes consistently reported a high num-
ber of misloads throughout June 1989. Othe employees occa-
sionally reported high misloads during that period but the
others showed improvement from time to time. Fawlkes
never lowered his misloads below five after his first day on
the job of loader. On that first day he had three misloads.
In view of that evidence, I am unable to find that Fawlkes
was suspended because of his union activities. The evidence
fails to show that Respondent discriminatorily selected
Fawlkes for suspension.
Discharge of Chris Fawlkes
Dale Jones was Respondent’s hub manager at Kernersville
from April 1988 until March 1989. Jones was not longer em-
ployed by Respondent at the time of his testimony. Jones tes-
tified about the incident:
. . . Butch Riggleman came in and told me that one of
the belts had been broken or torn by a slide. I imme-
diately asked Butch who put the slide in the belt and
he told me Chris had. We went outside to where the
accident occurred and I looked at the situation. The belt
was torn, probably at least forty (40) to forty-five (45)
feet long. I asked where Chris was. They found Chris
and Chris had originally told me that he was placing a
package on the slide and that the package had moved
the slide into the belt and we had another sorter right
there at the same time that was sorting packages at that
door once again, so I asked that person, is there any-
thing wrong with these slides, and he said no, so Chris
said well, maybe these are not the same slides, and I
said ‘‘well, Chris let’s you and me walk the entire sort
aisle and see, if there are any slides in here that you
think are the ones,’’ so he looked at every slide in the
building and he couldn’t determine which one was the
slide that he had placed underneath the belt, so I told
Chris to come to the office with me.
I took Chris into the office and I explained to him
that it was gross negligence on his part. One, he should
have never put the slide underneath that belt, and num-
ber two the length of the belt being torn it would have
been so eas for him to have reached an E-stop and stop
that belt at that time which I don’t think he did.
. . . .
When Chris couldn’t find the slide or a slide that
would fit underneath the belt, I asked Chris to recreate
what had happened, so he told me he started sorting,
is what I asked him to do, and he sorted I guess for
probably five (5) minutes and he never got another
slide to fall under there and he just kept telling me the
packages are not sticking like they were before, and I
said ‘‘Chris have no choice.’’
. . . .
I felt it was gross negligence on his part. I [sic] put-
ting a slide underneath that belt. I felt that it was inten-
tional. One because he did put the slide under there and
two he never reached the E-Stop. I’ve been in this busi-
ness over thirteen (13) years and dealt with all sorts of
things like this and to my knowledge and experience
I’ve never seen a slide that can be placed under a belt
like this at all.
According to Sort Manager Butch Riggleman, he heard
yelling from the sort area on August 4, 1988. Riggleman left
the load area and went into the sort area where he found a
belt had been torn. Riggleman asked Chris Fawlkes what
happened:
He told me that he was moving the (‘‘C’’) slide from
one door to another door.
Riggleman testified that employees are cautioned not to
move slides in the manner used by Fawlkes. According to
Riggleman, he examined the slide and discovered there were
no problems with the slide itself.
Three other employees were identified by Riggleman as
having been discharged for damaging company property.
Preston Bailey was discharged in May 1988, because he
snapped both the yoke and the drive shaft in a switch tractor
by failing to completely stop before switching from drive to
reverse. Bryan Dormer was discharged in October 1987 for
painting his name on one of Respondent’s chutes. Darrell
Crockett was fired in October 1988 for writing on the bath-
room walls with crayons.
977ROADWAY PACKAGE SYSTEM
1 In NLRB v. Prescott Industrial Products, 500 F.2d 6, 7 fn. 3 (8th Cir.
1974), the court pointed out that the Board did not reach the question of
whether conduct of the type engaged in by Rennick constituted union activity
as well as protected activity.
The record shows that Respondent did not routinely dis-
charge employees for moving a ‘‘C-slide’’ on a conveyor
belt. Butch Riggleman testified about a incident that occurred
about a month before Riggleman testified on March 15,
1990. Riggleman testified that he caught employee Scott
Smith trying to move a C-slide on a conveyor belt:
Q. What did you tell Scott [Smith]?
A. Number 1 I referred to this particular incident
[i.e., the Chris Fawlkes discharge incident] and the
damage that was done to the belt. . . . [I explained to
Scott Smith] that the slides are not to be moved on
moving belts. If a slide needed to be moved then it
would be physically carried. They are heavy, but they
will be carried stepping over the other slide or actually
to be—he can just bump every one up one position.
Riggleman testified that he reprimanded Scott Smith and
that he has reprimanded other sorters that he caught trying
to move C-slides on conveyor belts.
As to Chris Fawlkes, Riggleman testified that he felt that
Fawlkes was in position to prevent damage to the conveyor
belt by hitting the emergency stop button.
The cost of the temporary repairs to the belt came to
$235.57. The replacement and installation of the belt in-
volved $1,034.86 in labor cost and, according to Dale Jones,
between $2210 and $2340 (Jones estimated from $17 to $18
a foot) to replace the 130-foot belt. That total cost would be
between $3,480.43 and $3,610.43.
Despite my findings above that Respondent illustrated
strong antiunion animus and awareness of the union activities
of Chris Fawlkes, I am unable to find that Respondent acted
illegally in discharging Fawlkes.
The evidence is clear that Fawlkes’ actions caused severe
damage to a conveyor belt.
As shown above, I am unable to credit Fawlkes’ testi-
mony. However, even his testimony, raises grave concern as
to his responsibility for damage to the conveyor belt.
The credited evidence shows that a slide being used by
Fawlkes was permitted on a conveyor belt and that slide
lodged between two belts causing one to rip over some 40
feet. Respondent’s rules prohibited placing slides on con-
veyor belts.
The credited evidence shows that Fawlkes was correctly
identified as the employee whose slide ripped the conveyor
belt. Fawlkes was unable to show how the slide came to be
on the belt through anything other than intention action or
negligence on his part. In that regard, credited evidence of
Hub Manager Dale Jones proved that he and Fawlkes looked
at all slides in an unsuccessful effort to find the damaged
slide which Fawlkes claimed caused the rip. Thereafter,
Jones watched as Fawlkes tried unsuccessfully to repeat what
Fawlkes claimed caused the slide to fall over onto the belt.
The evidence did show that Respondent does not routinely
discharge employees when the employees place C-slides on
conveyor belts. Those employees are routinely cautioned not
to put slides on belts and are reprimanded.
However, the record does show that Respondent has rou-
tinely discharged employees found responsible for damage to
property.
Again, as I noted above, the law does not make prounion
employees immune from disciplinary action. Here I am un-
able to find that Respondent treate Fawlkes any differently
than it would have treated a nonunion employee if that em-
ployee had caused similar damage.
I find that the credited evidence supports Respondent’s
contention that Fawlkes caused severe damage to a conveyor
belt. The credited evidence also shows that Respondent did
not act in a discriminatory fashion when it discharged
Fawlkes for that incident.
Willie Rennick
The General Counsel alleges that Willie Rennick was dis-
charged because he engaged in union or protected activities.
The record shows that Rennick did engage in union activ-
ity. He testified that he wore a union cap, he distributed
union handbills, talked to other employees about the Union,
and served on the union organizing committee. However,
there was no direct evidence showing that these activities
contributed to his discharge.
The evidence shows that during a February 8 meeting,
Rennick did speak out on several occasions and Rennick ad-
mittedly refused orders that he clock out. In view of that evi-
dence it appears that it was not Rennick’s prior union activi-
ties, but that it was his activities on February 8 that led to
his discharge.
However, the above analysis does not end the inquiry as
to Rennick. Rennick’s comments during the February 8
meeting were in the nature of prounion comments. The
Board has found employee comments during antiunion, cap-
tive-audience meetings, called by the employer, may be pro-
tected.1 (See J. P. Stevens & Co., 219 NLRB 850 (1975);
Prescott Industrial Products Co., 205 NLRB 51 (1973), revd.
500 F.2d 6 (8th Cir. 1974).)
The evidence established that Rennick’s responses to
Grant’s antiunion comments led to Rennick’s discharge.
Therefore, the evidence does establish that Rennick was dis-
charged because of his activity, which may have constituted
protected activity, during the February 8 meeting.
Regardless of the nature of Rennick’s comments, there re-
mains a question of whether Respondent is entitled to take
action to maintain control. In F. W. Woolworth Co. v. NLRB,
655 F.2d 152 (8th Cir. 1981), the court upheld the Board’s
finding of a violation, holding:
The Board has held, and we agree, that an employee
is engaged in concerted activity when he attempts to
ask questions at a captive audience meeting, convened
by management on the subject of unionization, unless
the questions are pursuant to a scheme or plan to dis-
rupt the meeting. [Id. at 153–154.]
Nevertheless, jurisprudence has established that an em-
ployer may discipline an employee because the employee
speaks out in protest of antiunion remark’s, if it is shown
that the employee’s activity constituted misconduct:
The Board has long held that there is a line beyond
which employees may not go with impunity while en-
gaging in protected concerted activities and that if em-
ployees exceed the line the activity loses its protection.
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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 objec-
tions to them shall be deemed waived for all purposes.
That line is drawn between cases where employees en-
gaged in concerted activities exceed the bounds of law-
ful conduct in a moment of animal exuberance or in a
manner not motivated by improper notives and those
flagrant cases in which the misconduct is so violent or
of such character as to render the employee unfit for
further service. [Prescott Industrial Products, 205
NLRB 51, 52 (1973).]
That is the issue here, i.e., did Willie Rennick’s conduct
during the February 8 meeting constitute misconduct.
In that regard, the evidence shows that after Rennick com-
mented ‘‘bullshit’’ to one of Jason Grant’s comments, he
was called down by Sort Manager Fred Lapish.
The record includes evidence that another employee, Greg
Strong, made a similar comment but that Strong was not
called down by a supervisor.
After further comments from Rennick and others including
Greg Strong, John Creger, and other employees, Fred Lapish
called down Rennick again. Lapish did not call down any
other employee.
Subsequently, according to the testimony of Rennick,
Lapish called down Rennick on one more occasion, then
Rennick was told to clock out. Rennick refused to clock out.
Subsequently, Rennick met with Hub Manager Dale Jones
and, again refused a directive to clock out.
There are several questions apparent at this point of my
analysis. Obviously, I must question whether Rennick en-
gaged in misconduct but I must also consider the question
of discrimination. Was Rennick, instead of any other em-
ployee, called down because of his Union activities.
Rennick was called down by Lapish even though other
employees were talking during the February 8 meeting. How-
ever, there is nothing inherently illegal in the discriminatory
selection of an employee for instructive directions provided
the employee was not singled out because of protected activ-
ity.
The record does not support a finding that Lapish called
down Willie Rennick rather than any other employee, be-
cause of Rennick’s protected activities. The other outspoken
employees were, like Rennick, speaking out in protest of the
antiunion remarks of Jason Grant. Therefore, I do not find
discrimination in the selection of Rennick.
Rennick does not dispute that he was, in effect, instructed
to keep quiet on three occasions. Despite those instructions
from Sort Manager Fred Lapish, Rennick continued to speak
out during Grant’s presentation. On the fourth occasion
Rennick was told to clock out. After starting toward the
clock, Rennick stopped and refused to clock out. Rennick
persisted in his refusal even though Lapish told him again to
clock out. In a meeting with the hub manager Rennick per-
sisted in refusing to clock out. Subsequently he was dis-
charged.
Former Hub Manager Dale Jones testified that Rennick
continued to resist efforts to have him clock out during a
subsequent meeting in Jones’ office. During that meeting, ac-
cording to Jones, he referred Rennick to two earlier acts of
insubordination. On one occasion, Rennick was discharged
but rehired, after he cursed coordinator Kyle White. On an-
other occasion, Rennick had a run in with the regional safety
and maintenance manager, Bud Evenson, who had cautioned
Rennick because Rennick was walking on a conveyor belt.
I am persuaded that Rennick’s actions constitute unpro-
tected misconduct. An employer must be able to maintain
some degree of control in the workplace. Here, Rennick was
given five separate directives including the two directives to
clock out. He persisted in talking despite Lapish telling him
on three occasions to keep quiet. Subsequently, he twice re-
fused Lapish’s direction to clock out. Those activities exceed
activities which the Board, in other cases, has found suffi-
cient to warrant disciplinary actions by an employer. Verland
Foundation, 296 NLRB 442, 446, 447–448 (1989); Azalea
Gardens Nursing Center, 292 NLRB 683 (1989); Elion Con-
crete, 287 NLRB 69 (1987).
CONCLUSIONS OF LAW
1. Roadway Package System, Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Teamsters and Helpers Local 391, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent, by encouraging its employees to quit their
jobs because they were not members of the local union; and
by threatening its employees with transfer or termination due
to their union or protected activities, engaged in conduct vio-
lative of Section 8(a)(1) of the Act.
4. Respondent, by transferring its employee Donald Pres-
ton Lowe in March, 1989, because of Lowe’s union and pro-
tected activities, engaged in conduct violative of Section
8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices 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, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Roadway Package System, Inc.,
Kernersville, North Carolina, its officers, agents, successors,
and assigns shall
1. Cease and desist from
(a) Engaging in conduct in violation of Section 8(a)(1) of
the Act by threatening to close its facility if its employees
selected Chauffeurs, Teamsters and Helpers Local 391, affili-
ated with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL–CIO, or
any other labor organization, as their collective-bargaining
representative; by promulgating and attempting to enforce a
no-solicitation, no-distribution rule which prohibits employ-
ees from soliciting or distributing union literature during
nonworktimes in nonwork areas; by threatening to call the
979ROADWAY PACKAGE SYSTEM
3 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
police to its employees unless the employees stop their
handbilling activities on behalf of the Union; by engaging in
surveillance of its employees handbilling activities; and by
threatening to evict its employees because of their
handbilling activities on behalf of the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at at its facility in Kernersville, North Carolina,
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice, on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.