Rocket Messenger Service

National Labor Relations Board - Board Decisions

Aug 31, 1967

167 N.L.R.B. 252 (N.L.R.B. 1967)

252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Olympic Delivery Service, Inc., d /b/a Rocket Mes- TRIAL EXAMINER'S DECISION
senger Service and Irwin Kadens. Case
21-CA-7403
August 31, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On May 10, 1967, Trial Examiner William E.
Spencer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that the
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint, and recom-
mended that such allegations be dismissed.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
.ORDER
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: Pursuant to a
charge filed on December 7, 1966, by Irwin Kadens, an
individual, the General Counsel of the National Labor
Relations Board, the latter hereinafter called the Board,
on December 14, 1966, issued his complaint alleging in
substance that the Respondent herein discharged Kadens
because of the latter's union activities and because he
filed an unfair labor practice charge against the Respond-
ent, and threatened Kadens with reprisals if he sought
the aid of the Union, his bargaining representative, in the
matter of grievances, thereby engaging in conduct viola-
tive of Section 8(a)(1), (3), and (4) of the National Labor
Relations Act, hereinafter called the Act. Respondent in
a duly filed answer denied all allegations of the unfair
labor practices.
A hearing on the General Counsel's complaint, with all
parties represented, was conducted by me in Los An-
geles, California, on February 20, 1967, and within a
stipulated period thereafter the Respondent and the
General Counsel filed briefs. Upon consideration of the
said briefs, my observation of the witnesses, and the en-
tire record, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Olympic Delivery Service, Inc., d/b/a Rocket Mes-
senger Service, the Respondent herein, is a corporation
engaged in parcel delivery to business enterprises in the
area of Greater Los Angeles, California. During a materi-
al 12-month period it performed services of a value in ex-
cess of $500,000, including services valued in excess of
$50,000 performed for various wholesale enterprises in
the area of Greater Los Angeles, each of said enterprises
in turn performing services or making sales valued in ex-
cess of $50,000 directly to customers located outside
California. During a material 12-month period it per-
formed services valued in excess of $30,000 for
Lockheed Aircraft Corp., which services were related to
the national defense.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Olympic Delivery Ser-
vice, Inc., d/b/a Rocket Messenger Service, Los
Angeles, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as modified
herein:
Delete from paragraph 2(a) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided ...."
IT IS FURTHER ORDERED that the complaint, in-
sofar as it alleges unfair labor practices not found
herein be, and it hereby is, dismissed.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Automotive Workers Union, Local No.
495, called the Union hereinafter, is a labor organization
within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Essential Facts
The Respondent was organized by the Union in about
1962, and for several years has had, and currently has, a
collective agreement with the Union. The agreement in-
corporates the standard grievance procedure.
Irwin Kadens, alleged to have been unlawfully
discharged on October 12, 1966, has been employed by
the Respondent as a messenger since 1956. His first
discharge occurred on April 20, 1966. It was preceded by
a warning notice dated February 23, 1966, which stated:
You have been repeatedly warned by your
167 NLRB No. 33
ROCKET MESSENGER SERVICE
dispatchers and myself regarding the untidy condi-
tion of your vehicle and your failure to maintain your
vehicle within safe operating requirements. You
have seen fit to disregard these warnings This is
your final warning. Further violations of these rules
will be deemed sufficient grounds for instant dismis-
sal.
The notice was signed by Nelson Thurston, Respond-
ent's president and manager.
On April 22, Kadens filed a grievance with the Union
protesting his discharge and making various accusations
of discriminatory treatment. On April 26, at a meeting at-
tended by Kadens, John Krasnick, the Union's business
representative, Thurston, and Donald D. Rea, Respond-
ent's labor consultant (who is not an attorney), Respond-
ent agreed to reinstate Kadens with backpay and without
prejudice to his seniority. As part of the settlement
agreement Kadens signed the following statement:
I, Irwin Kadens, hereby agree to reinstatement to my
job at Rocket Messenger Service, will [sic] full back
pay and full seniority rights, as complete settlement
of my grievance regarding my recent discharge.
Further, I hereby agree to abide by all company
rules, and understand that any further infraction of
Company rules will result in appropriate disciplinary
action, including discharge.
According to Kadens, whose grievance encompassed
numerous items of alleged discriminatory treatment aside
from the discharge, it was agreed that these various other
grievances "would be investigated and corrective mea-
sure would be taken." Both Krasnick and Thurston
testified that they understood that the agreement arrived
at on April 26 was in settlement of all of Kadens' out-
standing complaints. Without going into detail as to the
nature of Kadens' grievances, their burden was that
Kadens charged that he was being discriminated against
by not being assigned a fair share of the work, resulting in
substantially reduced pay, and by being given the less
desirable assignments.
Kadens, following his reinstatement on April 26, was
convinced that Respondent was continuing to deny him
his fair share of the work and consequently, according to
him, became nervous and upset to a degree that caused
him to seek the services of a physician upon whose order
he took a leave of absence from Respondent's employ
from May 7 to June 12. On May 8 he filed another
grievance, protesting that since his reinstatement "there
are more and continuous violations and abuses by the
dispatchers and the General Manager [Thurston] of this
company" and further stating:
I have returned to work in good faith on 4/26/66.
I have good reason to believe there was bad faith and
deception by the company so as to avoid an in-
vestigation of my case. This continued harassment
and punishment has caused me mental anguish and
my doctor ordered me to rest from this work for a
while... .
Kadens "dropped" this grievance upon the assurances,
according to him, of his union representative, Krasnick,
that Krasnick had talked with Thurston and had been told
by the latter that "everything would be all right."
Kadens returned to work on June 12, and on July 19
filed another grievance, the second since his reinstate-
ment . In this grievance he stated:
I request a hearing by the National Labor Rela-
tions Board due to unfair labor practices by the
253
above named employer because of violations of sec-
tion 8(a), etc., of the National Labor Relations Act.
The basis of charges are as follows:
1. Previous grievances, abuses, and protests of un-
fair labor practices have been ignored and not
remedied to this present date.
2. The continuance of unfair distribution of long
distance and well-paid work to employees.
3. Requesting a full investigation of the company
records to prove by employee witnesses that the
union contract and the labor laws are violated.
Once again, Kadens dropped his grievances, according
to him on Krasnick's representations that Thurston had
assured Krasnick "everything would be all right."
Believing that Respondent was continuing to treat him
unfairly, Kadens on October 3, filed still another
grievance. According to him, before this fiiling he at-
tempted to get in touch with Rea, Respondent's labor
relations advisor, in the hope that through Rea he would
be able to resolve matters satisfactorily so as to avoid the
filing of further grievances. He could not reach Rea by
phone, but Rea, apparently aware of the calls, informed
Thurston, and on the morning of September 28 Kadens
was summoned to Thurston's office. According to
Kadens, on meeting Thurston, this occurred:
THURSTON: Why are you filing grievances against
me?
KADENS: Why don't you leave me alone , and let
me do my work properly and give me a fair deal in
this, instead of keeping me on low calls and low
bookings and low wages?
THURSTON: I am going to get you for this. You are
not going to get away with this. You are not going to
file any grievances against me and get away with it.
At this point Kadens left Thurston's office and went to
his automobile which was parked some 15-20 feet from
Thuurton's office. Thurston followed Kadens to his car
and when he approached the latter took off his glasses
and told Kadens: "Take your glasses off. I am going to
punch you right in the nose." When Kadens stood mute,
Thurston said, "You are yellow. I always knew you were
a yellow belly." Kadens then took the grievance papers
out of his car, saying that he was going to file them with
the Union "right now." Thurston warned him not to file
them on company time, took the papers out of Kadens'
hands, and then said, "you are not going to file these
papers You are going to make up new papers if you want
to file." Thurston did not return the grievance papers,
went to his office, and in a few minutes returned to tell
Kadens to be in Rea's office next morning for a con-
ference, with Krasnick in attendance.
Kadens went to Rea's office as instructed where Rea
informed him that since Krasnick was unable to attend
there would be another meeting . Rea then handed Kadens
two Xeroxed copies of the grievance papers Thurston
had taken from him on the previous day. After adding an
additional grievance on his encounter with Thurston on
September 28, Kadens on October 3 filed his grievance
with the Union. Krasnick informed him that he would in-
vestigate the grievance and would talk to Rea. A few days
later Krasnick told Kadens that he had checked out the
grievances and that in his opinion there was no merit to
them and advised him that if he was still dissatisfied that
he should file charges with the Board.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 10 Kadens did not report for work. He
phoned the company office , told dispatcher Jeschke that
he was engaged on personal business and would not re-
port for work . That same morning he filed charges of un-
fair labor practices against the Respondent and, accord-
ing to him , was so "upset" and "nervous " that he went to
his physician , who advised him to take off from work for
a few days . Accordingly , on October 11, Kadens called
the office , advised Jeschke that he would be off from
work for a period and that if the Company wanted to get
in touch with him they should write or call. He also told
Jeschke that he had filed charges against the Company on
the previous day. Kadens did not report for work on Oc-
tober 12 and did not call because he had informed the
Company the day before that he would be off the job.
On October 11, the Respondent received a copy of the
charge filed by Kadens the previous day alleging that the
Respondent had engaged in unfair labor practices. On
October 12, Respondent ' s Thurston was interviewed by
a Board agent on the basis of Kadens ' October 11 charge.
Also on October 12, Respondent decided to discharge
Kadens and a notice of his dismissal was mailed to him on
that date . Kadens then filed the charge which initiated the
present proceedings.
There is some dispute over the circumstances of
Thurston ' s seizing Kadens' grievance papers on Sep-
tember 28, and whether in reporting his absence from
work on October 11, Kadens made reference to acting on
doctor 's orders.
According to Thurston , when Kadens came to his of-
fice on September 28, he informed Thurston that he was
going to file another grievance . Thurston said, "I thought
we had this all settled .... What charges have you got to
throw against me now ?" Kadens then showed him the
grievance papers and on reading them Thurston admit-
tedly became very angry . Thurston testified , "I read the
paper , and the paper in itself is enough to make an honest
businessman angry ." Apparently he had reference to this
language appearing in Kadens ' grievance papers:
Due to continued deliberate and malicious unfair
labor practices , breach of the union contract, and
violations of trust by the above-mentioned company
manager [ Thurston]....
Admittedly while still angry , Thurston followed Kadens
to the latter ' s car, told him that he wanted to make copies
of the grievance papers, snatched the papers out of
Kadens' hands, and returned with them to his office. He
admitted something was said about a "poke in the nose"
but was uncertain whether he or Kadens initiated the
challenge to fisticuffs. Kadens was certain his testimony
and I find that Thurston was the challenger and that when
Kadens stood mute he called him a "yellow belly."
Thurston denied that he threatened Kadens with reprisals
if he filed any more grievances, but admitted that he said
"something" to the effect that he would sue Kadens for
"slander and false misrepresentation."
Kadens' absence from work on October 10 raises no
question of substance . As was customary he called in and
informed Jeschke that he would be absent and Jeschke
raised no objection . His call on the following day raises a
more substantial question. Jeschke denied that Kadens
made any reference to being absent on doctor's instruc-
tions, but testified that Kadens said he "had been advised
not to come in until this thing was settled" and that "any
official communications should come to his house, and,
please , mail his check ." Jeschke reported on the
telephone conversation to his immediate superior , Daniel
Segura. Segura denied that in reporting the conversation,
Jeschke made mention of Kadens' having said he would
be absent on doctor 's orders. In a prehearing affidavit,
however, Segura stated:
I believe the next day , October 11, Jeschke told
me that Kadens had called in and said that his doctor
had told him , Kadens, not to come in to work for a
couple of weeks because of Kadens' nervous condi-
tion.
Segura testified that in his affidavit he had reference to
Kadens' earlier absence from work on doctor ' s orders,
and that either he or the Field Examiner taking his af-
fidavit confused the two dates . Thurston denied that
either Segura or Jeschke in reporting to him on Kadens'
absence made any reference to doctor 's instructions, but
testified that he was informed that Kadens had called say-
ing that he would not report back to work until "this
thing" was settled . It was Thurston 's undenied testimony
that he called the Union 's agent , Krasnick , to find out if
the latter was the one who had instructed Kadens not to
report for work.
During his conference with the Board 's Field Examiner
on October 12, and according to an affidavit given the
Field Examiner on that date , Thurston announced his
decision to discharge Kadens and gave "unauthorized
absences" as his reason for effectuating the discharge.
It was Thurston ' s undenied testimony that after
reviewing the circumstances of Kadens ' employment, the
Board ' s Field Examiner stated as his opinion that
Kadens' discharge was justified. Kadens' October 10
charge was deemed by the General Counsel to be of in-
sufficient merit to require the issuance of a complaint. It
was not until December 7 that Kadens filed the charge
which initiated this proceeding.
Respondent admitted that up until the past year or so
preceding the discharge , it regarded Kadens as a satisfac-
tory employee , and there is no evidence that any
problems affecting his employment arose between
Kadens and the Respondent during this period . Further
according to the Respondent , during the past 1-1/2 to 2
years, Kadens' work deteriorated and he became increas-
ingly untidy in his personal appearance , failed to maintain
his vehicle in a clean and safe condition , was frequently
tardy, and took more time with his assignments than was
normally required . Substance is given this position by the
warning notice preceding Kadens' April discharge and
the discharge notice itself , notices not alleged to have
been predicated in any degree on Kadens' union or con-
certed activities.
Respondent attributed the decline in the quality of
Kadens' job performance to various illnesses and injuries
requiring increasingly intensive treatment for "nervous
disorders ." Kadens' testimony on cross-examination:
A. Well, I had a head and neck whiplash , back in-
jury, during this time.
Q. When?
A. A few years ago.
Q. And what since?
A. I had a hand injury. I had a nevous condition,
past year or year and a half or so, and I had
headaches.
Kadens attributed the decline in his earnings over the
past year and a half to discriminatory treatment. His
testimony:
In previous years, before this past year and a half, I
ROCKET MESSENGER SERVICE
was averaging among the top five men, and the
records will show that in pay period. In the past year
and a half due to my Union activities, my salary
dropped from $150.00 to $200.00 a week down to
. . . $90.00 to the highest, I believe, which was
$120.00 a week. There was deliberate and malicious
attempts to give me poor pickups and deliveries and
sent on1pickupsriand deliveries which were low paid.
The orders were given, I understand from other
drivers who talked to the dispatcher, by Mr.
Thurston to keep me down, and that I would have to
quit.
Krasnick, Kadens' union representative, testified that
he investigated each of the grievances filed with the
Union by Kadens, interviewing Kadens' fellow em-
ployees, studying company records, etc., but could find
no factual support for Kadens' allegations of discrimina-
tory treatment.
B. Concluding Findings
Kadens was active, along with others, in bringing the
Union into Respondent's plant, but this occurred in 1962
and for years Respondent has operated under a collective
agreement with the Union. There is no reason to infer
that Kadens, aside from filing grievances, has been any
more active in union affairs than any other employee, and
no foundation has been established in the evidence for in-
ferring that the Respondent would single him out for dis-
criminatory treatment because of his union or concerted
activities, unless in the matter of grievances. The fact is
that he filed no written grievances prior to his April 1966
discharge, and there is no evidence that his discharge in
April was predicated in any degree on this, or activities of
a like nature. Nevertheless, he was discharged in April
and his reinstatement on union intervention raises no
proper inference that this discharge was in any way viola-
tive of the Act. It does raise a proper inference that at that
time Respondent had, or thought it had, reasons having
nothing to do with union or concerted activities, to
discharge him.
The situation remains much the same with respect to
his October 12 discharge except that in the interim
Kadens had filed a succession of grievances, and it is
possible to infer that the filing of these several grievances
prompted, in part at least, his discharge. In fact, Thurston
admitted in substance, that the harassment suffered from
repeated filing of grievances which he, and Kadens' union
representative as well, considered to be without merit,
may have played some part in the discharge decision. If
this were the usual discharge case such an admission,
without more, might ground a finding of discriminatory
action, but I do not regard this as a usual or "pattern"
discharge case.
There must be some point where the legitimacy of
grievances ends and the unwarranted harassment of an
employer begins, and here I think it had reached that
point. There is no doubt that this employee suffers a deep
and wounding sense of persecution at the ends of his em-
ployer. Suffering such a sense of persecution he naturally
would cast about for some explanation of its source and
motivation. His union activity no doubt would furnish
him with what would appear to him to be the root cause
of all his trouble, for a man in his state of mind would not
likely be able to admit to himself that the substantial
falling off in his earnings in recent years was attributable
255
to any failure on his part. The fact is that outside the wit-
ness' own unverified version of the abuse that he suffered
in Respondent's employ, the record fails to disclose that
he was actually discriminated against in any way in the
course of his employment prior to his discharge.
His grievances, submitted directly to the Union, were
investigated by Krasnick, who testified convincingly- al-
beit with obvious embarassment that in so testifying he
was placed in the posture of supporting the employer
rather than a member of his Union - that he could find no
support for the accusations contained in the Kadens'
grievances. On the occasion of the last grievance Kadens
filed with the Union, Krasnick informed him that there
was no basis for his charges, that if carried to arbitration
he would almost certainly lose, and that if not satisfied
with his Union's advice in the matter he should file
charges with the Board. This Kadens did and the charge
was dismissed by the Board without the issuance of a
complaint, only to be followed by a second charge which
initiated this proceeding.
I have given considerable weight to Krasnick's
testimony both because of its obvious sincerity and
straightforwardness and my conviction that had he found
it possible to support Kadens' position in this matter, he
would have done so. It must be remembered that it was
on the basis of the Union's intervention in April that
Kadens was restored to his job with backpay. There is no
reason to infer that the Union's support would have been
any less marked on later occasions had there been any
factual basis for Kadens' complaints. Among Kadens'
grievances was the assertion that in violation of its union
contract, Respondent was assigning nonunion men to
union jobs, something, were it a fact, that assuredly would
have given Krasnick as much concern as any employee.
Assuming, however, contrary to the testimony of
Krasnick, Thurston, and others, that there was some sup-
port in fact for some of the grievances, it would not follow
that Kadens was being discriminated against because of
union or concerted activities. I think there is no evidence
to support such a conclusion.
Thurston exceeded the bounds of permissible conduct
when, after being shown Kadens' latest grievance on Sep-
tember 28, he followed the latter to his car, snatched the
grievance papers out of Kadens' hands, and threatened
him. We must not, however, if we are going to be objec-
tive in the matter, ignore the fact that there were ex-
tenuating circumstances. While the settlement agreement
reinstating Kadens to his job in April on its face related
solely to the matter of reinstatement, I have no doubt that
Thurston believed, as did Krasnick, that all of Kadens'
grievances up to that date were being settled. Soon after
his reinstatement , however, Kadens recommenced the fil-
ing of grievances relating to much of the same subject
matter, took weeks off from his job because of what is
commonly described as a "nervous breakdown,"
thereafter filed more grievances- all without a founda-
tion in fact, according to his own union representative -
culminating in the grievance of September 28 in which, as
usual, Thurston was portrayed as his chief persecutor,
one guilty of "deliberate and malicious unfair labor prac-
tices, breach of the union contract, and violations of
trust."
Assuming Thurston's innocence of all these accusa-
tions- and we may assume it because there is no proba-
tive evidence to the contrary- some allowance must be
made for Thurston's words spoken in anger and his sub-
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sequent action in seizing the grievance papers. It is borne
in mind that Thurston is not a lawyer, his labor relations
advisor is a layman, and he has not presented here the
astutely formulated and phrased defense that might have
been made out on the facts of this case. He might have
pleaded, with conviction I think, that it was not the filing
of grievances per se that brought him to the breaking
point, but the filing of a succession of grievances which
incorporated unfair and baseless accusations against the
Company and himself: not the grievances qua grievances
but the baseless and abusive language appearing in them.
As to the discharge itself, it appears to me, as ap-
parently it appeared to the Board's Field Examiner in-
vestigating Kadens' October 10 charge, that justification
existed for Respondent's action. Kadens duly reported
his October 10 absence and there is no reason to believe
that it alone constituted cause for discharge. He also re-
ported his October 11 absence, and the absences that he
indicated were to follow, and while this may have con-
stituted a technical compliance with Respondent's rules,
it can hardly be said that the said rules were designed to
allow employees to absent themselves from work when-
ever they chose and for indefinite periods, without some
form of authorization. It hardly takes a rule to spell out
limitations of such conduct. Kadens duly reported his
absences, and in an absence of a single day that probably
sufficed, but in a protracted absence mere reporting did
not signify authorization. That some S months earlier, on
advice of his doctor, he had absented himself from work
for about a month and was penalized therefor, can hardly
be said to have established a precedent justifying further
like absences without company authorization.' That
Respondent was considerate enough to retain him as an
employee on this earlier occasion does not license us to
exact equal consideration when for a second time, only a
few months later, he gave notice of a second period of ab-
senteeism . I do not think whether Kadens reported that
he was absenting himself on "doctor's orders" is material.
I doubt that the notice of his future absenteeism was re-
ported to Thurston that way for had it been he would
hardly have called Krasnick to ascertain if Kadens was
staying away on the latter's advice. But in any event, I do
not see that the Respondent was obliged to condone his
absence for some indefinite period, the second such
absence in a period of less than a year, even though it was
indeed in compliance with doctor's orders. This agency
has not been created an arbiter of conscience nor a prod
to charitable forebearance.
Obviously, when a discharge follows so closely on the
heels of the filing of a grievance which Respondent admit-
tedly resented, and the filing of a charge of unfair labor
practices which Respondent could hardly have wel-
comed, it is easy to find what might otherwise constitute
compelling reasons for discharge action mere pretext, and
here Respondent's madly scrambled defense makes such
a finding all the easier. However, neither the filing of
grievances, charges of unfair labor practices, or other
manifestations of union and concerted activities freeze an
employer in a state of inaction where a discharge for
cause would otherwise lie, and while it may well be that
the Respondent would not have acted so hastily in
I Does the fact that Respondent returned Kadens to his job after his
first period of absences raise an inference that it therefore considered him
a desirable employee? I think it is just as reasonable to infer that having al-
ready encountered the intervention of the Union by its earlier discharge of
discharging Kadens the second time except for his record
of harassment by way of meretricious grievances contain-
ing defamatory language, I cannot say on a preponder-
ance of the evidence that the discharge would not have
occurred when it did on the basis of job performance
which had been worsening for a period of more than a
year and a half, and now an unauthorized absence for
some indefinite period dependent to a degree on when
"this thing" was settled. For all these reasons I am not
disposed to make an 8(a)(3) finding based on this
discharge, and were I to do so, I would be unable to
recommend the usual remedy of r°instatement with
backpay, for I am convinced that Kadens' deep-seated
and perhaps ineradicable sense of persecution at
Thurston's hands would result, were he ordered rein-
stated, in a renewal of practices which would make his
continued employment intolerable both to himself and to
his employer. I do, however, make an 8(a)(1) finding
based on Thurston's threats against the filing of further
grievances and his action in taking Kadens' grievance
papers by force and not thereafter returning them to him
in their original form, for despite the provocation, such
statements and such action have a far-reaching potential
impact upon employees' rights under the Act and should
not stand without an appropriate remedy.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering in an unlawful manner with the filing
of a grievance by its employee, Irwin Kadens, with his
duly constituted bargaining representative, and by
threatening him with reprisals in the event of his con-
tinued exercise of his right, the Respondent has interfered
with, restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not engaged in conduct viola-
tive of Section 8(a)(3) and (4) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, conclu-
sions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the Respondent,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from interfering in an unlawful
manner with the filing of grievances by employees with
their duly constituted bargaining representative, threaten-
ing them with the reprisals for the exercise of this right, or
in any like or related manner interfering with, restraining,
Kadens, it did not care so soon thereafter , by a second attempt to remove
Kadens from its payroll, to risk further union intervention with its possible
impact on a bargaining relationship which on the whole appears to have
been amicable
ROCKET MESSENGER SERVICE
or coercing its employees in the right to self-organization,
to form labor organizations , to join or assist the Union, or
any other labor organization , to bargain collectively
through representatives of their own choosing , and to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain
from any or all such activities, except to the extent that
such right may be affected by an agreement requiting
membership in a labor organization as authorized in Sec-
tion 8 (a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Los Angeles, California, place of busi-
ness, copies of the attached notice marked "Appendix."2
Copies of said notice, to be furnished by the Regional
Director for Region 21, after being duly signed by
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not al-
tered, defaced, or covered by any other material
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.3
2 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order "
3 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
257
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that.
WE WILL NOT interfeie in an unlawful manner with
the filing of grievances by our employees with their
duly constituted bargaining representative, threaten
them with reprisals for the exercise of this right, or in
any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to
self-organization, to form labor organizations, to join
or assist Teamsters Automotive Workers Union,
Local No. 495, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in collective bargaining
or other mutual aid or protection.
OLYMPIC DELIVERY SER-
VICE, INC., D/B/A ROCKET
MESSENGER SERVICE
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building , 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229.