The Lawson Co.

National Labor Relations Board - Board Decisions

Nov 25, 1988

291 N.L.R.B. 792 (N.L.R.B. 1988)

792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Lawson Company and Milk and Ice Cream
Drivers and Dairy Employees Union Local 336
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO 1 Cases 8-CA-19002 8-
CA-19004 8-CA-19005 8-CA-19272 8-CA-
19313 and 8-CA-19313-2
November 25 1988
DECISION AND ORDER
By MEMBERS JOHANSEN CRACRAFT AND
HIGGINS
On February 5 1988 Administrative Law Judge
Irwin H Socoloff issued the attached decision The
General Counsel filed exceptions and a supporting
brief The Respondent filed a reply brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings 2 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the complaint is dismissed
provided that jurisdiction of this proceeding is re
tained for the limited purpose of entertaining an ap
propriate and timely motion for further consider
ation on a proper showing that either (a) the dis
pute has not with reasonable promptness after the
issuance of the Decision and Order either been re
solved by amicable settlement in the grievance pro
cedure or submitted promptly to arbitration or (b)
the grievance or arbitration procedures have not
been fair and regular or have reached a result that
is repugnant to the Act
i On November 1 1987 the Teamsters International Union was read
muted to the AFL-CIO Accordingly the caption has been amended to
reflect that change
2 In the absence of exceptions the Board adopts the judge s recommen
dations that the Respondent did not violate the Act by discharging em
ployees Kimble Hairston Burns Anzaldi Dearth Clark Krbec Lenox
Mason and Watson and that the accrued driver safety award bonuses
issue is appropriate for deferral
Charles Z Adamson Esq for the General Counsel
Michael T McMenamin Marcia E Hurt or Mark T
Wassell Esqs of Cleveland Ohio for the Respondent
DECISION
STATEMENT OF THE CASE
IRWIN H SOCOLOFF Administrative Law Judge On
charges filed on 10 March 25 June and 8 July 1986 by
Milk and Ice Cream Drivers and Dairy Employees
Union Local 336 of the International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers of
America (the Union) against The Lawson Company (the
Respondent) the General Counsel of the National Labor
Relations Board by the Regional Director for Region 8
issued a second amended consolidated complaint dated
31 October 1986 alleging violations by Respondent of
Section 8(a)(3) and (1) and Section 2(6) and (7) of the
National Labor Relations Act (the Act) Respondent by
its answers denied the commission of any unfair labor
practices
Pursuant to notice trial was held before me in Cleve
land Ohio on 1 2 3 and 4 December 1986 at which
the General Counsel and the Respondent were represent
ed by counsel and were afforded full opportunity to be
heard to examine and cross examine witnesses and to in
troduce evidence Thereafter the parties filed briefs that
have been duly considered
On the entire record in this case and from my obser
vations of the witnesses I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent a Delaware corporation has an office and
place of business in Cuyahoga Falls Ohio and is en
gaged in the production distribution and retail and non
retail sale of dairy products and the operation of retail
stores Annually Respondent in the course and conduct
of its business operations derives gross revenues in
excess of $500 000 and sells and ships products valued in
excess of $50 000 from its Cuyahoga Falls Ohio facility
directly to points located outside the State of Ohio I
find that Respondent is an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
II LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
The Union represents Respondents plant employees
and its drivers working at the Cuyahoga Falls facility in
separate collective bargaining units The most recent
contracts between the parties were effective 15 Decem
ber 1982 to 15 December 1985 Beginning on the date
those agreements expired both units of employees en
gaged in an economic strike
On 4 February 1986 Respondent discharged striking
employees Richard Anzaldi Larry Burns Charles Hair
ston and Ronnie Kimble Earlier on 26 December 1985
it discharged strikers Henry Mason Paul Dearth Gerald
Lenox John Clark Dale Krbec and Anzaldi On 10
February 1986 striking employee Kenneth Watson was
discharged
In the instant case the General Counsel contends that
the strikers were discharged in violation of Section
291 NLRB No 126
LAWSON CO
8(a)(3) of the Act because they engaged in an economic
strike Respondent asserts that it terminated the employ
ment of those individuals for lawful reasons namely its
good faith belief that they had engaged in serious mis
conduct during the course of the strike Also at issue is
whether Respondent violated the Act by its refusal to
pay accrued vacation money and accrued driver safety
award bonuses to striking employees
B The Discharges of Anzalsi Burns Hairston and
Kimbell
Patrolman Gary Pritchard of the Austintown Ohio
police department testified that about 2 a in on 29 Janu
ary 1986 he passed a small shopping center in Austin
town which contained a Lawson store and three other
stores all of which were closed Pritchard noticed a car
parked in the lot that serviced those stores The vehicle
was running and contained three occupants later identi
feed as Richard Anzaldi Charles Hairston and Larry
Burns Pritchard also observed a man standing in the
alley between the Lawson store and another store about
2 to 3 feet back from the front of those stores As Pritch
and drove into the parking lot to investigate the subject
vehicle driven by Anazaldi exited and the man in the
alley ran toward the woods behind the stores Pritchard
pursued the car stopped it and questioned the occu
pants Anzaldi Hairston and Burns identified themselves
as striking employees of Lawson who were distributing
strike related fliers Following the arrival of a second
police officer the vehicle was searched and the police
officers found and confiscated three slingshots two ice
picks and two hatches The officers also observed but
did not confiscate rocks and bricks They allowed the
occupants of the car to leave and one of them told
Pritchard that they would go to a nearby Taco Bell Res
taurant Pritchard told them that the Taco Bell was
closed and he suggested that they go instead to another
nearby restaurant Luciano s
After the car driven by Anzaldi departed Officer
Pritchard returned to the Austintown Lawson store
where he found footprints in the snow around an electn
cal meter located on the side of the Lawson building
Pritchard observed that the meter had been damaged
the bottom half of the cover had been pried away from
the box and the glass encasement was cracked Pritchard
so notified a Lawson representative
About 2 hours later Pritchard observed Anzaldi s ve
hicle at a nearby gas station The officer spoke to Burns
who asked if Pritchard had arrested the fourth man
Pritchard said that the police had not seen him and asked
for his name Burns replied that he was with us but I
don t know his name Still later during the early morn
ing hours of 29 January Pritchard learned that a brick
had been thrown through a window at the Lawson store
in Lake Milton Ohio some 10 miles form the Austin
town store Pritchard then had a police car dispatched to
i The factfindings contained in this section are based primarily on the
testimony of Officer Gary Pritchard a patrolman with the Austintown
Ohio police department a disinterested witness who testified in a clear
and convincing manner I have also relied on the testimony of Thomas
Lee Respondents regional loss prevention manager who impressed me
as a truthful witness
793
Luciano s restaurant where Anzaldi s car was parked
and the bricks in that car were confiscated
Pritchard met with Respondents regional loss preven
tion manager Thomas Lee at 6 a in at the Austintown
store Pritchard told Lee of what had occurred earlier
that morning and pointed out the damage to the electn
cal box Shortly thereafter while inside the store they
were approached by Janice Kimble the former wife of
striking employee Ronnie Kimble Janice Kimble asked
Officer Pritchard if he had arrested a white male about
6 feet tall wearing a blue plaid jacket a description
which matched that of the man Pritchard earlier had
seen in the alley Kimble said that she was the man s
former wife and that some friends had called her and
asked her to come to Austintown to help find him She
added that They were just standing in the parking lot
They weren t doing anything Pritchard asked why a
former wife would drive some 50 miles from her home
in the early morning hours to look for a former husband
Kimble said that she had three children at home She
told Pritchard and Lee that she would rejoin her friends
at the nearby restaurant
After Lee learned that bricks had been thrown
through the window of the Lake Milton store he ob
served and photographed fragments of those bricks and
the bricks that the police had removed from Anzaldi s
car Lee found a similarity of color and consistency He
also learned that the man observed in the alley by
Pritchard and described by Janice Kimble fit the de
scription of Ronnie Kimble
On the basis of the foregoing evidence provided to
Respondent through the statements of Pritchard and
Lee Respondent formed the belief that Anzaldi Burns
Hairston and Kimble acting in concert had vandalized
the Lawson stores in Austintown and Lake Milton On 4
February 1986 they were discharged for having engaged
in strike misconduct
Anzaldi Burns Hairston and Kimble all testified that
they did not engage in vandalism of Respondents stores
Kimble testified that he was at home on the evening in
question and Anzaldi Burns and Hairston testified that
Kimble was not with them According to Anzaldi
Burns and Hairston the three of them met about 6 p in
on 28 January at Anzaldi s home in Akron Ohio and
then drove some 45 miles to the Austintown area where
they proceeded to distribute literature until 6 a in on 29
January They further testified that before they were
stopped by Officer Pritchard they had not parked in the
lot of the Lawson store in Austintown but rather had
simply driven into the lot turned their vehicle around
and driven out According to Anzaldi they met Janice
Kimble at Luciano s restaurant after 2 a in pursuant to
Anzaldi s prearrangement with her because she was pro
viding strike assistance Thereafter according to Hair
ston he left the restaurant in Jancie Kimble s car and
with her proceeded to distribute more pamphlets Hair
ston testified that he was in Janice Kimble s company the
entire morning and returned with her to Akron at 8
a in and that she did not stop at the Austintown store at
6 or 6 30 a in However contrary to Hairston s testimo
ny Burns claimed that Hairston remained with Burns
794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Anzaldi and returned to Akron with them The
General Counsel did not call Janice Kimble as a wit
ness 2
The circumstantial evidence in Respondents posses
sion provided by Pritchard and Lee might be insuffi
cient to secure criminal conviction It was however
manifestly sufficient for Respondent to form a good faith
belief that Anzaldi Burns Hairston and Kimble acting
in concert had vandalized its stores The testimony of
Anzaldi Burns Hairston and Kimble contained inherent
improbabilities conflicted with the testimony of credible
witnesses and on certain points they contradicted each
other Further I draw an adverse inference from the
General Counsels failure to call Janice Kimble as a wit
ness In these circumstances I am not persuaded that the
claimed misconduct did not in fact occur and I con
clude that Respondent lawfully discharged Anzaldi
Burns Hairston and Kimble in reliance on its good faith
belief that they had engaged in serious strike misconduct
C The Discharges of Mason Dearth Lenox Clark,
Krbec and Anzaldt3
On 16 December 1985 in the early evening Harry
Baldwin since retired drove a lawson truck to the main
gate of Respondents plant in Cuyahoga Falls As he
turned into the driveway passage of Baldwin s truck was
blocked by five pickets including Paul Dearth Henry
Mason and Richard Anzaldi who stood in front of the
truck They were later joined by others including John
Clark and Dale Krbec Another picket Jerry Lenox
stood to the side of the truck After a few minutes
Lenox walked to the truck and disconnected the air
hoses thereby immobilizing it At that time the truck s
trailer was overhanging the first of three sets of railroad
tracks that lie to the west of the Lawson gate
After a short while a train whistle was heard and
someone yelled There s a train coming get that
damn truck off the track One of the pickets then re
hooked the air hoses and Baldwin was allowed to pull
the truck forward a few feet before its path was blocked
again The air hoses were again unhooked and Clark
aided by Anzaldi turned down the trailers dolly wheels
Nonetheless accordirg to the testimony of Respondent s
vice president Thomas Chicome an eyewitness part of
the trailer continued to overhang the first set of tracks If
the approaching train had been on that set of tracks it
would have hit the trailer Fortunately however the
train happened to pass on the middle set of tracks and it
missed the trailer by 4 to 6 feet
After the passage of the train a group of pickets re
mained in front of the truck including Mason Dearth
Lenox Clark Krbec and Anzaldi The police were
called and at the time of their arrival the pickets still
blocked passage of the truck but the trailer was no
longer overhanging the railroad tracks When Clark
alone among the pickets refused the order of a police
2 Respondent served her with a subpoena but she failed to appear at
trial
3 The factfindings contained in this section are based primarily on the
testimony of former employee and Supervisor Harry Baldwin and that of
Respondents vice president Thomas Chicome both of whom impressed
me as truthful witnesses of clear recollections of events
man to move out of the path of the truck a scuffle
ensued among the police officers Clark and Krbec
Clark and Krbec were arrested The entire incident
lasted some 30 minutes Ten days later on 26 December
1985 Respondent discharged Mason Dearth Lenox
Clark Krbec and Anzaldi for strike misconduct with re
spect to this incident
Lenox did not testify in this proceeding Clark Krbec
Anzaldi and Dearth did testify and they admitted to
blocking ingress of the truck They denied that they dis
abled or immobilized the truck Mason admitted he was
standing at the side of the truck but he denied that he
helped block the ingress of the truck However three
other witnesses including the driver Baldwin testified
that Mason stood in front of the truck with the group of
pickets blocking ingress The weight of credible evidence
establishes that Mason did indeed stand in front of the
truck
The 16 December 1985 incident which gave rise to
the discharge of Mason Dearth Lenox Clark Krbec
and Anzaldi involved more than blocking the ingress of
a truck and temporarily disabling it By blocking the
movement of the truck at a time when its trailer was
overhanging a set of railroad tracks these individuals
created a life threatening situation Indeed but for the
happenstance fact that the approaching train passed on
the adjacent set of tracks loss of human life or great
bodily injury would have occurred In these circum
stances I find and conclude that the strikers were en
gaged in unprotected activity and that the discharge of
those strikers was not in violation of the Act 4
D The Discharge of Watson
On 7 February 1986 striking employee Kenneth
Watson picketed at the main gate of Respondents plant
in Cuyahoga Falls Late in the afternoon according to
the testimony of Tom Stewart a security guard em
ployed by Mid American Security Incorporated two
Lawson trucks exited through the gate At that time
Stewart testified he observed a picket stationed in front
of the gate later identified as Watson who carried a
stick in one hand and a hammer in the other Stewart
further testified that as the first truck exited the picket
waived the stick and yelled at the driver Some 45 sec
onds later as the second truck departed the picket
threw the hammer at the trailer of that truck Subse
quently the picket walked onto the street and retrieved
the hammer Stewart reported the matter to his superior
and a Lawson official was advised
Watson in his testimony denied throwing a hammer
or any other object at a truck He testified that as the
second truck exited a hammer fell off the truck and
landed on the street At that point Watson claimed he
walked out onto the street picked up the hammer and
removed it from the street area
The report of the security guard Stewart provided
Respondent with ample basis to form an honest belief
that Watson had engaged in an unprovoked act of vio
lence that justified his discharge 5 Watson s testimony
4 New Galax Mirror Corp 273 NLRB 1232 (1984)
5 See Western Pacific Construction 272 NLRB 1393 (1984)
LAWSON CO
denying that he had engaged in misconduct lacked the
ring of truth and thus I am not persuaded that the
claimed misconduct did not in fact occur I therefore
conclude that the discharge of Watson was not in viola
tion of the Act
E The Vacation Pay and Driver Safety Award Bonus
Issues
The parties agree that the drivers and the plant em
ployees earned vacation pay pursuant to the terms of the
expired collective bargaining agreements An employee s
accrued 1985 vacation pay was earned from his anniver
sary date in 1984 to his anniversary date in 1985 Those
striking employees who had not taken or been paid for
their 1985 vacation prior to the 15 December 1985 coin
mencement of the strike received their accrued 1985 va
cation pay during the strike
Accrued 1986 vacation pay was earned from the em
ployee s 1985 anniversary date to 15 December 1985
Employees who joined the strike have not received their
accrued 1986 vacation pay unless they have been terms
nated retired quit or returned to work Respondent in
tends to pay accrued 1986 vacation benefits to the stnk
ers at the conclusion of the strike when they return to
work or are placed on a preferential hiring list In refus
ing to pay accrued 1986 vacation benefits to employees
on voluntary leaves of absence Respondent relies on
its interpretation of the governing contracts and on past
practice
The expired contract covering the plant employees
provides
In the event an employee is laid off or is discharged
or is allowed to resign in connection with discipli
nary action they shall be entitled to any full annual
vacation earned but not taken In the event of a vol
untary resignation they are entitled to any va
cation earned and not taken
The drivers agreement provides
In the event an employee is laid off or is dis
charged or if he resigns he shall be entitled to
any full annual vacation earned but not taken
In the absence of contract provisions expressly covering
entitlement to receive accrued vacation pay during pen
ods of voluntary leave of absence Respondent contends
that under the cited provisions it is privileged to with
hold accrued vacation pay from strikers who have not
retired resigned or been terminated In the past the
Company has withheld payment of accrued vacation
benefits to employees on sick leave or other voluntary
leave of absence until the employee returned to work
retired or resigned
The expired drivers agreement provides for a driver
safety award program under which drivers who have
safe driving records receive a cash bonus Eligibility for
the award is based on guidelines established by the Na
tional Safety Council In the past the bonuses were paid
in April at an awards banquet
Shortly before the strike began Respondent notified
the Union that in the event of a strike hospitalization
795
benefits would cease After the strike began various
strikers made use of their prescription drug cards with
out authorization from Respondent In March or April
1986 Respondent notified those employees of the
amount of money due as reimbursement Thereafter
some of the striking employees made the requested pay
ments Strikers who returned to work during the course
of the strike were required to make such reimbursements
to the Company When during the summer of 1986 Re
spondent paid bonuses to those drivers eligible for a
driver safety award it deducted unauthorized prescnp
tion drug charges from the awards of those drivers who
had not previously reimbursed the Company In the past
Respondent has similarly made deduction from payments
to employees for money owed the Company
As noted Respondent contends that in withholding
accrued 1986 vacation pay and in making deductions
from the driver safety award bonuses it was lawfully im
plementing its rights under the contract and acting in ac
cordance with past practice Given the cited contract
provisions and the evidence of past practice these con
tentions are substantial and not frivolous The Company
is willing to submit these disputes directly to arbitration
pursuant to the contractual procedures
In light of the above and as these disputes are ground
ed in contract and cognizable under the grievance arbi
tration provisions of the parties collective bargaining
agreements referral to the arbitral forum is indicated I
conclude under United Technologies Corp 6 that the con
tractual disputes should not be considered on their merits
but rather that deferral to the contractually created
forum is appropriate
CONCLUSIONS OF LAW
1 Respondent The Lawson Company is an employer
engaged in commerce and in operations affecting coin
merce within the meaning of Section 2(2) (6) and (7) of
the Act
2 Milk and Ice Cream Drivers and Dairy Employees
Union Local 336 of the International Brotherhood of
Teamsters Chauffeurs Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act
3 Respondent did not violate the Act by discharging
Ronnie Kimble Charles Hairston Larry Burns Richard
Anzaldi Paul Dearth John Clark Dale Krbec Gerald
Lenox Henry Mason and Kenneth Watson
4 The issues raised by the complaint concerning Re
spondent s refusal to pay accrued vacation money and
accrued driver safety award bonuses to striking employ
ees are appropriate for deferral to the grievance arbitra
tion provisions of the most recent collective bargaining
agreements between Respondent and the Union
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed'
6 268 NLRB 557 (1984)
7 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
Those portions of the complaint alleging that employ
ees were discharged in violation of Section 8(a)(3) of the
Act are dismissed
Those portions of the complaint alleging that nonpay
ment of accrued vacation money and accrued driver
safety award bonuses to striking employees was in viola
tion of Section 8(a)(3) of the Act are dismissed provided
that
Jurisdiction of this proceeding is retained for the limit
ed purpose of entertaining an appropriate and timely
motion for further consideration on a proper showing
that (a) the dispute has not with reasonable promptness
after the issuance of this decision either been resolved
by amicable settlement in the grievance procedure or
submitted promptly to arbitration or (b) the grievance or
arbitration procedures have not been fair and regular or
have reached a result that is repugnant to the Act