Yellow Freight System

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 115 (N.L.R.B. 1995)

115
317 NLRB No. 15
YELLOW FREIGHT SYSTEM
1 Charging Party Frazier has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
Yellow Freight System, Inc. and Otis Cross and
George Frazier and Truck Drivers, Oil Drivers,
Filling Station and Platform Workers’ Union,
Local No. 705, an Affiliate of the International
Brotherhood of Teamsters, AFL–CIO. Cases
13–CA–31963, 13–CA–32131, 13–CA–32116,
and 13–CA–32151
April 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On January 31, 1995, Administrative Law Judge
Thomas R. Wilks, issued the attached decision. The
Charging Party, George Frazier, filed exceptions.
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 has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Yellow Freight System,
Inc., Chicago Ridge, Illinois, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Denise R. Jackson, for the General Counsel.
Ronald E. Sandhaus, Esq., of Overland Park, Illinois, for the
Respondent.
Thomas Carpenter, Esq., of Chicago, Illinois, for the Charg-
ing Party Union.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. On Sep-
tember 1, 1993, Otis Cross, an individual, filed the charge
in Case 13–CA–31963. Thereafter, on November 9, 1993,
George Frazier, an individual, filed the charge in Case 13–
CA–32116. On November 12, 1993, Otis Cross filed the
charge in Case 13–CA–32131. On November 19, 1993,
Truck Drivers, Oil Drivers, Filling Station and Platform
Workers’ Union, Local No. 705, an affiliate of the Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union)
filed the charge in Case 13–CA–32151. Each of these four
charges alleged that Yellow Freight Systems (the Respond-
ent) violated the National Labor Relations Act.
On October 25, 1993, the Regional Director for Region 13
of the National Labor Relations Board issued complaint and
notice of hearing in Case 13–CA–31963 alleging that Re-
spondent violated Section 8(a)(1) and (3) of the Act. There-
after, on January 12, 1994, the Regional Director issued an
order consolidating cases, amended consolidated complaint,
and notice of hearing for Cases 13–CA–31963, 13–CA–
32131, 13–CA–32116, and 13–CA–32151. The order alleged
that Respondent violated Section 8(a)(1), (3), and (5) of the
Act.
More specifically, the complaint alleges that on July 8,
1993, Respondent initiated step one of its progressive dis-
ciplinary system with respect to its driver-employees Frazier
and Cross, the latter a union steward, because of their union
or otherwise protected activities. Those activities were later
argued to consist of Cross’ excessively vigorous representa-
tion of Frazier in a predisciplinary ‘‘coaching’’ or investi-
gatory/counseling session held on July 8, prompted by
Frazier’s conduct that Respondent perceived to be sexual
harassment of a female office employee. The General Coun-
sel does not challenge Respondent’s good faith with respect
to its judgment that Frazier engaged in sexual harassment
and did not litigate the merit of that judgment. The General
Counsel’s theory is that Respondent would not have pro-
ceeded to step one of the disciplinary procedure had it not
been for Cross’ presence and vigorous representation of
Frazier at the coaching session, for which Cross himself re-
ceived a step-one warning letter for insubordinate conduct.
The complaint further alleges that on October 22, 1993,
Respondent discriminatorily terminated a past practice
whereby stewards Cross and Thomas Gamino had been given
preferential traveling assignments and preferential early start-
ing times in order to accommodate their representation of
unit employees at outlying satellite terminals at which there
was no steward domiciled. It is alleged that the action was
taken because of the concerted activities of ‘‘the named em-
ployees’’ in violation of Section 8(a)(1) and (3) of the Act
and without giving prior notice to and bargaining opportunity
to the Union, thus violating Section 8(a)(1) and (5) of the
Act.
The Respondent filed a timely answer wherein it admitted
much of the operative facts but denied that the warning let-
ters were unlawfully motivated. It also denied unlawful moti-
vation for the recission of the past practice of preferential as-
signment to the two stewards. Subsequently, Respondent
took the position that Frazier was issued a warning letter be-
cause he chose not to participate meaningfully in an optional
predisciplinary coaching session at which Respondent sought
to educate him about its antisexual harassment policies. It
contends that Cross was issued a warning because of his in-
subordinate disruptiveness at the coaching session, which
conduct lost his protection of the Act. Respondent argues
that Cross’ conduct at the coaching session ought to be eval-
uated, not by the criteria of permissiveness extended by
Board precedent to stewards engaged in negotiations or in
grievance resolution, but rather by the more limited
participatory rights of a union steward at an interview held
in part to explore an employee’s alleged misconduct that de-
pending on that employees’ level of cooperation could lead
to discipline. NLRB v. J. Weingarten, Inc., 420 U.S. 451
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1975). The Respondent argues that it sought in the coaching
session to explore and evaluate Frazier’s sensitivity or lack
thereof to potential sexual harassment situations and to as-
sure that Frazier understood its policy by reading it to him
verbatim. Respondent contends that Cross sought to trans-
form the coaching session into an abusively adversary con-
frontation, in part over the definition of sexual harassment
itself and its manager’s authority with respect to sexual har-
assment issues; and by so doing frustrated Respondent’s right
to conduct an investigative interview. To a great extent, the
General Counsel’s own witnesses confirm that Cross did en-
gage in adversarial and confrontational conduct that prohib-
ited Manager Robert Zimmerman from conveying Respond-
ent’s sexual harassment policies to Frazier and that led to a
de facto rejection of the coaching session, Frazier’s presence
there notwithstanding.
It is a factual issue whether Zimmerman laid hands on
Cross in an effort to eject him at the point the session was
aborted and when it appeared Cross was reluctant to leave
Zimmerman’s office, as requested, or whether Cross pounded
Zimmerman’s desk and shouted obscenities at him.
Respondent admits to the cessation of a past practice of
granting preferential assignments to main terminal stewarts in
which they could, on company time and with company vehi-
cles, service outgoing satellite terminals. Respondent claims
that it was the Union itself that proffered that very cessation
in return for the appointment of a steward among those driv-
ers domiciled at the outlying terminals. Respondent further
argues that when it quickly agreed to the change and in-
formed the Union of its implementation the Union neither re-
quested bargaining over it nor raised the issue in subsequent
collective bargaining over a succeeding contract. Further-
more, Respondent argues that the past preferential assign-
ment to stewards that deviated from the job-bidding seniority
rights to which they would otherwise be entitled as non-
representational employees ‘‘may actually be an illegal
superseniority agreement in violation of Section 8(b)(2) of
the Act.’’ Respondent cited Dairylea Cooperative, 219
NLRB 656 (1975). The General Counsel did not anticipate
the Dairylea issue and is silent with respect to it.
The complaint also alleges that Respondent, by its
Linehaul Manager Mark Van Dyke, ‘‘about early October
1993’’ threatened Cross with unspecified reprisals ‘‘for filing
charges with the Board’’ in violation of Section 8(a)(1) of
the Act. That issue is resolvable only by a one-to-one credi-
bility resolution between Cross and Van Dyke.
The foregoing issues were litigated before me at trial on
September 20, 1994, at Chicago, Illinois, at which all parties
were given full opportunity to examine witnesses and to in-
troduce relevant documentary evidence. The parties exercised
their option to file briefs that because of their request and
my impending absence from my office for the month of Oc-
tober was set for October 25. Pursuant to subsequently grant-
ed extensions of time, briefs were not filed until November
14 and 15, 1994.
On the entire record of this case, including my evaluation
of witnesses’ demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Based on the admissions and the record, I find that Re-
spondent’s business activities meet the required Board juris-
dictional criteria and that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act. I further find that the Union is and has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Background
Respondent is a transcontinental trucking company that
operates numerous terminals throughout the United States,
including the main hub at Chicago Ridge, Illinois (Harlem
Avenue location or CGB). Respondent maintained other out-
lying satellite area terminals in the periphery of its Chicago
service area at Wheeling, Illinois (WEE); Elk Grove, West
Chicago; and Palatine, Illinois. Shuttle drivers and pickup
and delivery truckdrivers employed at all locations are in a
bargaining unit represented by the Union. During 1993 Cross
was employed as a shuttle driver domiciled at the CGB loca-
tion. He also served as steward for the Union. George Frazier
was employed as a driver at WEE and was represented by
the Union. Gamino, like Cross, was a shuttle driver domi-
ciled at CGB and also a union steward. He and Cross were
responsible for the representation of unit employees at the
other terminals. They frequently accomplished this by the
past practice of Respondent’s assignment of them, at their re-
quests, to shuttle runs to the outlying terminals to accommo-
date their representational duties. Often, this entailed the use
of an empty Respondent vehicle. They were also granted a
preferential earlier starting time (i.e., earlier than that to
which they were entitled under the job assignment and shift
starting bid process).
The Union and Respondent were and are parties to a suc-
cession of collective-bargaining agreements, one of which
was effective from April 1, 1991, to March 31, 1994. The
contracts were silent concerning the preferential assignment
and its preferential starting time practice for union stewards.
There is no evidence that the subject had been discussed at
any of the earlier collective-bargaining sessions. There is un-
disputed testimony that the Union did not raise the subject
during negotiations following the expiration of the 1991–
1994 agreement.
There is an absence in the record of any persisting Re-
spondent animus toward employees who engage in grievance
or any other union or concerted activities. There is no evi-
dence of Respondent aversion to employees who wish rep-
resentation or counseling by stewards or other unit employee
representatives during the coaching sessions. Cross had been
employed as a shuttle driver since May 1981 and com-
menced his steward duties in April 1993. He testified that he
had counseled employees in three or four coaching sessions
as a union steward and was present at 30 or 40 more coach-
ing sessions as a nonofficial representative. He failed to tes-
117YELLOW FREIGHT SYSTEM
tify to any prior animus to any of his past representational
activities, official or otherwise.
It is undisputed that Respondent has conducted managerial
and supervisory training sessions with respect to implement-
ing an antisexual harassment policy throughout its system to
accommodate pertinent Federal civil rights legislation, Su-
preme Court precedent, and EEOC guidelines. Robert Zim-
merman, the WEE branch manager, had participated in Re-
spondent’s antisexual harassment training shortly prior to
July 7, 1993.
2. The coaching session process
The nature of the so-called coaching session procedure
was explained by the essentially uncontroverted testimony of
Respondent’s witnesses. Respondent Corporate Manager of
Labor Relations Robert Stultz was responsible for the nego-
tiation of collective-bargaining agreements covering five
States, including those covering Respondent’s Chicago hub
operation with the Union and with its sister Teamsters Local
710, which represented other Respondent employees includ-
ing loaders and dock workers. Stultz is also responsible for
the overall review of all grievances. Stultz set forth the his-
tory of the coaching session process. It was initiated by Re-
spondent as a preprogressive discipline mechanism to resolve
work problems arising between the employee and Respond-
ent by mutual recognition of the problem, a discussion of it,
and a mutually agreed-on resolution. The process was prof-
fered as an alternative to the disciplinary system and accept-
ance of the process was optional for the employee. It was not
considered to be a disciplinary system by either Respondent
or the Union according to Stultz and he is not contradicted.
On the initiation of the coaching session process, the
Union expressed disinterest and avoided involvement with
the process on the grounds that it was not part of a discipli-
nary process. Local 510, however, enthusiastically embraced
it and consistently participated in it. Cross testified that he
only participated in three or four coaching sessions during
his tenure as a union steward. After an open courtroom col-
loquy concerning his competence to testify about the con-
sequences of employees’ refusal to cooperate in the process
by virtue of his limited experience, he thereafter testified that
he participated in the process 20 to 30 times, but not as a
union representative. Unit employees may freely select other
unit employees to accompany and assist them when they par-
ticipated in coaching sessions. Cross’ experience was pri-
marily that of a coworker. Twenty or thirty unexplained inci-
dents raise some question about the reliability of his testi-
mony, however, particularly because it appeared to be geared
to resolve the objection raised to his competency.
During a coaching session the supervisor utilizes a
preprinted form containing headings preceding blank
specifices to be filled in. The headings are: entitled problem,
employee view of causes, supervisor’s view of causes, em-
ployee’s view of solution, supervisor’s view of solution,
agreed-on solution, solution start date, employee signature,
and supervisor signature. Samples submitted into evidence
cover a variety of minor problems such as inadvertent com-
mission of shipping errors or omissions of required job func-
tions. WEE Branch Manager Zimmerman testified that in
1993 he presided over 20 to 24 coaching sessions at the
WEE terminal. He did not specify what percentage covered
Respondent’s unit employees. By virtue of Cross’ testimony,
despite the Union’s initial reluctance, at least some of its em-
ployees opted for the coaching session process and he, as a
union steward or otherwise, participated.
3. Consequences of employee rejection of the coaching
session option or noncooperation
The General Counsel argues that had it not been for Cross’
participation in the Frazier’s counseling session Frazier
would not have been issued a warning letter because it must
be found that it was not Respondent’s practice to do so in
other similar situations.
Stultz testified that it was the Respondent’s past practice
to either issue a warning letter or, in a minor matter, either
a letter of information or simply take no action when em-
ployees had refused to cooperate with a coaching session.
Stultz explained that Respondent’s action depended on the
employee’s proffered reason for noncooperation. A limited
sampling of warning letters issued after noncooperation with
coaching sessions was introduced into evidence. They in-
volved Local 710 employees, however.
Cross testified, as noted above, after the objection to his
competency with respect to limited experience, that he had
sat in on 20 to 30 coaching sessions. He then answered,
‘‘no’’ to the General Counsel’s question of whether to the
best of his knowledge it had been Respondent’s practice to
issue warning letters to employees who had ‘‘refused to
sign’’ the coaching session form. He further testified, without
foundation for his knowledge, that if the employees refused
the form was merely placed in the employee’s personnel file
and referred to again if the same problem arose again, at
which point the employee would receive a warning letter.
Because the vast preponderance of Cross’ participation was
limited to the role of a fellow unit member, there appears to
be no basis for his knowledge about whether or not subse-
quent warning letters issued or what kind of action took
place in the personnel office. Cross gave no names, dates,
circumstances, or other details. He did not even specify how
often or how infrequent a refusal to ‘‘sign’’ a coaching ses-
sion form occurred and whether it occurred during any of the
three of four incidents when he acted as a steward.
Counsel for General Counsel, who had subpoenaed perti-
nent Respondent records, proffered into evidence five coach-
ing session incident forms as evidence to support her conten-
tion. She adduced no other evidence. There is no evidence
about whether or not the employees, whose signatures are
absent from the document, were or were not issued warning
letters. Stultz had no specific recollection one way or the
other. Each party argues that it was the other party’s burden
to produce such evidence.
The five unsigned coaching session reports adduced into
evidence by the General Counsel by themselves prove noth-
ing. They appear to refer to rather minor incidents of em-
ployee misfeasance or nonfeasance. Four of them explicitly
state that the employee refused to sign the form. Four of
them affirmatively reflect an agreed-on solution and a solu-
tion starting time. The fifth does not have an entry for the
agreed-on solution category but does contain a date for the
solution start date (i.e., ‘‘today’’). Thus these documents re-
flect at least some degree of employee cooperation with the
process despite the failure to actually sign the form. The
General Counsel seems to take the position, however, that
Frazier was issued a warning letter for the ostensible but
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pretextual reason that he refused to sign the coaching session
form after he had presented himself for coaching and, by his
mere presence itself, effectuated compliance with it. The Re-
spondent takes the position that cooperation and participation
in the process were not forthcoming from Frazier despite his
presence and he was issued the warning proffered to him as
an alternative to meaningful cooperation and not merely be-
cause he did not execute the form.
4. Frazier’s coaching sessions and adverse
consequences
Frazier engaged in certain conduct at the WEE terminal on
the morning of July 7, 1993, which was observed by Zim-
merman and judged by him to constitute an instance of sex-
ual harassment or at least conduct conducive of creating a
hostile environment. The incident consisted of a certain
verbal interaction between Frazier, who was in the drivers’
room with 15 or more other drivers, and a female office em-
ployee, Donna Loss, who was in the dispatch office with
several office employees. The verbal exchange occurred
through an open window separating the two rooms. It was
observed by Zimmerman who was in the drivers’ area. He
heard the entire exchange. There is a conflict in testimony
about what initiated Frazier’s comments and, to a minor ex-
tent, precisely what Frazier said to Loss.
B. Credibility Findings
The General Counsel adduced the testimony of Frazier and
fellow unit member Jerry Blitstein to what occurred on July
7 and 8, and Cross concerning the confrontation on July 8.
Zimmerman testified about the events of July 7 and 8 and
was corroborated by Walter Cooper, who at that time held
the position of Respondent’s operations manager at WEE.
When he testified at trial Cooper had been employed else-
where and under circumstances that would not bias his testi-
mony toward Respondent. He did provide the Board with an
affidavit on January 17, 1994, presumably favorable to Re-
spondent. Thus it could be argued that he would be influ-
enced to give testimony not in conflict with prior sworn testi-
mony. Despite that arguable bias I find that he was the least
interested witness in the proceeding. The General Counsel’s
contention with respect to his affidavit testimony consists of
misinterpretation of that affidavit testimony in part and
mischaracterization of his record testimony and is therefore
not persuasive. I find no serious inconsistencies therein.
I find more credible the testimony of Respondent’s wit-
nesses with respect to the events of July 7 and 8. The Gen-
eral Counsel’s witnesses were in part mutually inconsistent
and in part not mutually corroborated. Cross, Frazier, and
Blitstein were not as spontaneous as Respondent’s witness.
They gave the impression of being calculating and indirect,
if not evasive, in demeanor despite the fact that they were
emotionally at ease in the courtroom setting and, to a great
extent, Frazier and Cross were aggressive and at times hos-
tile in cross-examination.
Despite Blitstein’s presence with Frazier on July 7 in the
drivers’ room within hearing range of the verbal interchange
with Loss, he was not called on by the General Counsel to
corroborate Cross about that interchange. Rather, in cross-
examination, he attributed to Frazier certain comments that
Frazier had attributed to Loss. Whereas Cross emphasized a
more passive conduct on July 8, Blitstein testified that he felt
it necessary to physically restrain Cross in his confrontation
with Zimmerman. Blitstein was a very cryptic and con-
clusionary witness. He was silent with respect to many de-
tails testified to by Zimmerman. Neither he nor Frazier de-
nied that Frazier forcefully kicked open Zimmerman’s office
door for entry on July 7 after being summoned there after
the Donna Loss interchange. Other details testified to by
Zimmerman were not contradicted.
When asked by the General Counsel whether Frazier re-
fused to participate in the attempted coaching session of July
7, Blitstein, as did Frazier, responded with an answer that
was more evasively argumentative than direct (i.e., ‘‘It is not
a question if he could refuse, he was already in there . . .’’
replied Blitstein and ‘‘No, I was in the room. [Therefore] I
did participate’’).
With respect to the conflict in the testimony about whether
Zimmerman was the abusive aggressor both verbally (with
Frazier and Cross) and physically (with Cross), it is ex-
tremely difficult to visualize Zimmerman in that role. Not
only was he less physically imposing than Frazier or Cross,
but his demeanor was that of a naturally reticent, soft-spo-
ken, mild-mannered personality. Both Frazier, the biggest
and most burly of the three, and Cross came forth as wit-
nesses possessing demeanor of tough, outspoken, hard as
nails, give no quarter partisans.
Blitstein admitted that he stayed behind with Zimmerman
on July 7 after Frazier departed from an aborted coaching
session at which he had also been present. As characteristic
of all his testimony his recollection was admittedly poor and
selective. Blitstein recalled that Zimmerman was angry and
very upset and that tried to smooth things over but that is
all he recalled. He did not rebut subsequent detailed testi-
mony of Zimmerman that supported Zimmerman’s character-
ization of the course of the meeting and characterization of
Frazier as the verbally aggressive participant who
unhesitatingly faced down a smaller and recessive superior in
such a manner that Blitstein expressed to Zimmerman fear
for Frazier’s dismissal.
In view of the foregoing samples of credibility problems
of the General Counsel’s witnesses, the relative demeanor of
all the witnesses, the more specific, detailed, coherent, cor-
roborated testimony of Respondent’s witnesses who testified
in a more convincing, spontaneous manner, and the record as
a whole, I credit the Respondent’s witnesses about the events
of July 7 and 8, 1993, and, accordingly, find as follows.
1. The July 7 episode
Loss entered the dispatch office seeking information about
the departure time of a certain load in order to satisfy a cus-
tomer inquiry. She eventually directed her inquiry to Frazier
via the open window. Frazier answered by inviting her to
step out into the open drivers’ area where he and the other
drivers could ‘‘check you out.’’ The invitation aroused
laughter from some of the 15 drivers present. Apparently, it
was known that she had undergone some body weight loss
according to Cooper’s admission. Zimmerman heard this and,
fresh from a seminar on the subject, considered the comment
to be sexual harassment. A coaching session was arranged
later in the day, at which Blitstein was freely permitted to
be present and assist Frazier after Frazier had forcefully and
loudly kicked open Zimmerman’s office door. Zimmerman
119YELLOW FREIGHT SYSTEM
admonished Frazier for banging open the door and proceeded
to recount Frazier’s remark to Loss. Zimmerman character-
ized those remarks as ‘‘inappropriate.’’ Frazier responded by
accusing Zimmerman of ‘‘inappropriate’’ conduct, by refus-
ing to acknowledge that he had made the remarks to Loss,
by saying that he would not acknowledge the coaching ses-
sion, by saying that he would not even acknowledge Zim-
merman, and by asking permission to go the clinic because
he claimed he was injured, which he defined as being
‘‘hyped up.’’ Zimmerman attempted to convince Frazier to
acknowledge the coaching session without success and or-
dered him back to work. Blitstein tried to calm down Frazier
as well as Zimmerman, who had become angry. He stayed
behind and asked Zimmerman not to discharge Frazier be-
cause he had two children and his ‘‘mouth was bigger than
his brain.’’ Zimmerman replied that he would not discharge
Frazier but that sexual harassment would not be tolerated and
comments like those to Loss were not permissible. Blitstein
admitted that he overheard the comments and told Zimmer-
man that he agreed that they were inappropriate.
Zimmerman had never encountered a sexual harassment
incident prior to July 7. He therefore contacted his superior,
Regional Manager Frank Gentry, and Human Resource Man-
ager Joyce Jansak. The three of them decided that it was im-
portant that Frazier be made aware of and acknowledge Re-
spondent’s policy with respect to sexual harassment and
therefore attempt to do so in another coaching session at
which his attitude could be explored and corrected. Thus
Frazier was given another chance to avoid a disciplinary ac-
tion for conduct that Zimmerman, in good faith, considered
serious sexual harassment. The General Counsel in effect
concedes that Frazier was in jeopardy prior to any concerted
protected activity involving Cross by virtue of the concession
concerning Zimmerman’s good-faith motivation. Even
Blitstein’s cryptic testimony corroborates Zimmerman to the
effect that Frazier refused to acknowledge to Zimmerman
that there was even a potential sexual harassment problem
because Frazier argued, in effect, that no one had taken of-
fense to his remarks.
2. July 8 confrontation
On July 8 Cross happened to be present at WEE in the
morning. According to him it was Zimmerman who re-
quested Cross’ presence at a second coaching session with
Frazier. In the face of that invitation, it is difficult to premise
a preexisting animosity toward a union steward’s mere pres-
ence at that coaching session. Also present at Zimmerman’s
invitation was Cooper.
Zimmerman started the meeting by asking the participants
to conduct themselves in an orderly manner and to keep their
voices down and that it was his intention to discuss Re-
spondent’s sexual harassment policy and to have Frazier par-
ticipate in a coaching session. Zimmerman stated that if
Frazier did not choose to participate he would be issued a
first-step written warning letter. Cross responded that the
Union did not recognize coaching sessions, but when Zim-
merman asked him whether he wanted to proceed directly to
a warning letter, Frazier responded that he did not. Thus,
prior to any further conduct by Cross, Respondent’s pre-
disposition to proceed to a warning letter in the absence of
coaching session participation was made manifest.
The next step in the July 8 coaching session was that Zim-
merman proceeded to read verbatim a printed document enti-
tled, Sexual Harassment, which had been previously prepared
by Respondent and distributed to its managers. The one full
page document set forth in five paragraphs Respondent’s
antisexual harassment policy and set forth therein brief defi-
nitions and/or examples of unlawful sexual harassment (e.g.,
offensive verbal conduct and unwelcome sexual language). It
is undisputed by all accounts that Cross persistently inter-
rupted Zimmerman. The interruption included the protesta-
tion that the employee, Loss, did not complain about
Frazier’s remarks. That contention caused a heated argument
over the merits of whether or not a sexual offensive remark
occurred and whether or not it was appropriate for Zimmer-
man to initiate the coaching session in the absence of an ex-
plicit employee complaint. Cross continued with his interrup-
tions by accusing Zimmerman of having a personal vendetta
against Frazier and by shouting at Zimmerman and telling
him that he was acting like a ‘‘dock cop’’ whereas his sole
function in reality was to move freight (i.e., he had no au-
thority to get involved in sexual harassment prevention).
Frazier testified that Zimmerman became ‘‘highly agitated’’
when Cross told him that he was ‘‘supposed to be the man-
ager and not a policeman and not to be chasing after some-
body’s remarks which are false to begin with.’’ According
to Frazier, Cross further admonished Zimmerman by telling
him that it was not his job ‘‘to be policing all the individuals
at the terminals over what they say to each other, especially
when it is not the kind of remarks that are made to hurt any-
one’s feelings.’’ Zimmerman responded by asserting that it
was indeed within his managerial prerogative to enforce the
Respondent’s sexual harassment policy, that it is irrelevant
whether Loss actually complained, and that he himself wit-
nessed the incident. According to Cross, he persisted in ques-
tioning Zimmerman about the factual context of the incident
despite Zimmerman’s admonishment that Cross was ‘‘out of
order.’’ Cross persisted in presenting arguments to the effect
that Frazier’s remarks to Loss were not inappropriate and
that the coaching session was ‘‘out of line.’’
Zimmerman attempted to turn the discussion to Frazier
and solicited from him some form of solution or agreement
concerning his future conduct. Frazier gave no affirmative re-
sponse but, instead, asked Cross what to do. Cross told him
to write on the bottom of the coaching session form that ‘‘it
is all a lie.’’ Frazier then entered in the space thereon for his
signature: ‘‘This is a lie.’’ Thereupon, Zimmerman told
Frazier that he would be receiving a warning letter for his
comments to Loss. Frazier did not respond. Cross jumped up,
pounded Zimmerman’s desk, and shouted to him that he was
a ‘‘mother fucking liar.’’ Zimmerman then terminated the
meeting and ordered Cross to call his supervisor for his next
work assignment and to leave the WEE terminal. Cross did
not move but rather shouted in response that Zimmerman
was not his boss and could not tell him what to do and that
he would talk to Stultz about it. While Cross continued to
shout obscenities Zimmerman opened the office door. Cross
then walked into the hallway, hesitated, and remained stand-
ing. Zimmerman placed his hand on Cross’ elbow in an at-
tempt to remove him from the facility by guiding him out.
Cross shouted, ‘‘Did you see him touch me?’’ According to
the credited testimony of Cooper and Zimmerman, Cross was
not pushed or shoved, as he later claimed, but merely guided
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or nudged out. Zimmerman threw his hands in the air and
walked away. Cross departed from the terminal.
3. July 8 reprimand
At the end of the day on July 8 Frazier received a first-
step warning letter for making an ‘‘inappropriate sexual re-
mark’’ to the office employee. The letter set forth therein an
assertion that Frazier had refused to ‘‘participate’’ in the
coaching session, thus ‘‘leaving [Zimmerman] with no alter-
native’’ but to issue a warning letter. The General Counsel
adduced some conclusionary testimony, on which there was
no foundation, in an attempt to show that the quick issuance
and manner of delivery of the letter were somehow unusual.
That testimony was of no probative value.
4. July 9 interview and reprimand
On July 9 at 11 a.m., Cross was summoned to the office
of CGB Linehaul Operations Manager Mark Van Dyke
where, in Dyke’s presence, he was interviewed by Stultz who
sat at Van Dyke’s desk. Cross’ account of the interview is
conclusionary and selective. According to him, he responded
to Stultz’ inquiry and gave his account of the July 8 coach-
ing session and was told he would receive a written warning
letter for insubordination for ‘‘pounding and swearing’’ at
Zimmerman despite his denial for so doing. Stultz asked and
Van Dyke responded that Cross had no prior disciplinary
problems. Cross testified that in response to his question
Stultz said there would be no action taken against Zimmer-
man for allegedly assaulting Cross in the hallway. Cross was
then presented with the warning letter for insubordination
(i.e., during the course of the July 8 coaching session in front
of Frazier and Cooper, angrily pounding the desk with his
fist and shouting obscenities at Zimmerman, after which he
was asked to leave the terminal).
Stultz’ account of the episode is far more detailed. Those
details were not subsequently rebutted by Cross nor other-
wise effectively contradicted. Stultz’ demeanor was far more
dispassionate, spontaneous, and convincing than Cross. I
credit Stultz, whom Van Dyke corroborated, and conclude
that the following conversation occurred. Stultz had received
reports about the door kicking episode of July 7 and the
aborted coaching session of that day and Zimmerman’s at-
tempt to pursue the matter with Frazier to assure that Frazier
understood Respondent’s sexual harassment policy. Stultz
had received reports about the July 8 coaching session inclu-
sive of Cross’ conduct set forth above. Stultz and Cross en-
gaged in a protracted discussion about whether Cross or his
own wife would or would not find similar remarks about his
wife to be offensive. Thereafter, Cross initially denied the
use of foul language. But then, 2 minutes later, Cross
pounded his fist on Van Dyke’s desk and said,
[A]ll right, all right I got up, I pounded my fist, not at
Zimmerman and I said ‘‘mother fucker’’ I don’t believe
this shit.
Stultz then pointed out to Cross how he had just contra-
dicted himself. Cross responded that the Union would not ac-
knowledge Respondent’s position on sexual harassment and
the meeting ended with Stultz’ statement that Cross would
receive a warning letter. Stultz testified that despite his ex-
tensive past dealings with union stewards, he had not en-
countered an incident of such a ‘‘violent manner.’’
Stultz testified that Cross was issued the warning letter be-
cause of his denial and self-contradiction by acting out the
very misconduct of which he was accused, conduct that Re-
spondent could not tolerate. He further testified without con-
tradiction that any driver at the WEE terminal was subject
to the orders of the terminal manager and was not free to
reject his authority unless the order involves his own safety.
On July 26, 1993, Cross served on the Respondent a ‘‘re-
buttal’’ memorandum wherein he again denied shouting ob-
scenities and desk pounding. He also stated therein, ‘‘I was
not asked to leave the terminal.’’ On the face of it, that state-
ment was inconsistent with his testimony but, in cross-exam-
ination, he tried to explain it away, claiming that he was
‘‘screamed at’’ to leave and not ‘‘asked.’’ In turn Cross al-
leged verbal and physical abuse by Zimmerman. On July 13,
1993, Cross filed a grievance against Zimmerman wherein he
alleged verbal and physical abuse at the July 8 coaching ses-
sion at which Cross also untruthfully alleged that they had
been given no opportunity to respond.
On September 1, 1993, Cross filed the first unfair labor
practice charge in this case relative to the warning letters.
Frazier did not file his charge until November 9. On Novem-
ber 12 Cross filed another unfair labor practice charge
wherein it was alleged that on October 27, the date also of
his grievance resubmission, he had been threatened by Re-
spondent for filing unfair labor practice charges against it.
In cross-examination Cross persisted with further strained
explanations for inconsistencies in his statements and docu-
ments authored by him, which further eroded his credibility.
He explained that at the July 8 session he was merely trying
to get Zimmerman to ‘‘investigate the charges further and if
necessary for me to investigate those charges,’’ and, while so
doing, he and Zimmerman spoke an equal length of time.
Zimmerman had witnessed the entire incident and had noth-
ing further to investigate except Loss’ own subjective feel-
ings that he explained to Cross were irrelevant. But, in any
event, Cross explained that both he and Zimmerman had
consumed equal talking time during the coaching session.
When asked to reconcile that testimony with the grievance
allegation that Frazier and Cross were given no chance to re-
spond, Cross dissembled by explaining that there was no
chance to respond ‘‘after Zimmerman decided to take com-
plete control of the meeting with his verbal antics and his
abuse to me and Mr. Frazier.’’ I find no credible evidence
in the record of verbal abuse of Frazier who chose to say
very little at the meeting.
5. Van Dyke’s threat to Cross
With respect to the alleged threat by Van Dyke Cross tes-
tified that it occurred in early October as alleged in the com-
plaint. In cross-examination he was confronted with the date
of October 27 set forth in the charge he had filed. He then
testified,
I’m saying it was in October. I can’t pinpoint the
specific date. I don’t have that right in my memory
right now. . . . sorry.
We can assume that my conversation with Mr. Van
Dyke, that it happened in early October.
121YELLOW FREIGHT SYSTEM
1 Respondent was notified by the Union by letter signed by Assist-
ant Trustee Gerald Zero and dated September 16, 1993, that Tom
J. Schneider had been appointed steward at Elk Grove terminal that
had recently merged with the Melrose terminal.
With respect to his grievance, Cross gave further confusing
testimony about the dates of its resubmission. He further tes-
tified that warning letters were not grievable despite the un-
disputed fact that they are considered to be discipline and the
fact that he himself filed such a grievance.
With respect to the substance of the alleged threat, Cross
testified that he was called to Van Dyke’s office and, while
they were alone and after Cross was seated, Van Dyke start-
ed waving his hands and extended them toward Cross stat-
ing,
I want you to forget about the Wheeling thing. It is not
going to do you any good, don’t pursue that issue, you
are going to lose it.
Cross testified,
I asked Mr. Van Dyke, I said to him, ‘‘Does this mean
that I could hurt myself here at Yellow.’’ And he told
me I could take it either way I wanted. He told me that
his superiors were fully aware of our conversation. I
didn’t say no more. I got up and left.
Cross also testified that on numerous occasions, unlike
past practice, Van Dyke asked him the purpose for his visit
to the WEE terminal. In his testimony, Cross speculated
about Van Dyke’s motivation (i.e., he presumed it was rel-
ative to whether Cross was ‘‘lining up some type of sup-
port’’ for his ‘‘charges’’ against Zimmerman). The General
Counsel argues that Van Dyke, ‘‘in cross examination,’’ did
not deny that the conversation occurred and that Van Dyke
did not deny the threat of reprisal but Respondent relied in-
stead on testimony that Van Dyke was absent from the termi-
nal on October 27.
Q. At any time [after the issuance of Cross’ last
warning letter] to the present day did you ever have a
conversation or any other meeting about Otis Cross
where the Wheeling incident came up?
A. No.
This testimony came on the heels of testimony concerning
the July 9 Stultz interview. Thereafter, Van Dyke denied
questioning Cross about the purpose of his visits to WEE be-
cause, he explained, Cross was expected to go wherever his
assignments took him, including WEE, which were easily
disclosed by looking at the dispatch records. Van Dyke ig-
nored the fact that Cross, as a roving steward, may have had
other nondisclosed union business at the WEE terminal prior
to October 22, 1993. Despite the implication in the brief by
counsel for General Counsel, Van Dyke was not cross-exam-
ined by her about the alleged threat conversation.
Thus the record contains the testimony of Cross, whose
credibility is shown to be vulnerable in other areas, but
whose testimony on this incident was clear, concise, precise,
self-contained, and accompanied by conviction and unchar-
acteristic spontaneity. The so-called denial by Van Dyke was
elicited by a somewhat ambiguous question. He was asked
about a meeting and/or conversation ‘‘about Cross,’’ not with
Cross. He was asked about such a meeting or conversations
‘‘where the Wheeling incident came up.’’ That question is
too vague and generalized in form and thus precludes me
from construing Van Dyke’s monosyllabic answer as a clear
categorical denial and unambiguous contradiction to Cross.
Furthermore, on this point, Van Dyke lacked certainty and
conviction in demeanor. Despite Cross’ unreliability in other
areas I conclude that with respect to the confrontation with
Van Dyke he was the more credible witness.
C. Alleged Unilateral Cessation of Preferential Shuttle
Trip and Starting Assignments to Stewards
Respondent admits that as of October 22, 1993, it re-
scinded the longstanding past practice of giving preference to
stewards Cross and Gamino with respect to satellite terminal
shuttle trip destinations and starting times. It argues that the
changed practice was prompted by conversations initiated by
the Union and in consequence thereof.
Van Dyke testified that he effectuated the cessation of
preferential assignments to Cross and Gamino pursuant to
verbal instructions from Stultz who told him that effective
October 22, the past practice ceased, that the Elk Grove ter-
minal had now a designated domiciled steward and that each
satellite terminal would similarly have its own domiciled
steward.1 On October 22, 1993, Van Dyke instructed, by
memoranda, all dispatchers to cease honoring special re-
quests by Cross to visit the satellites or to have early starts
and that all union business would henceforth be handled by
the union business agent or the domiciled stewards. Gamino
worked in pickup and deliver and was not directly under Van
Dyke’s jurisdiction.
Gamino testified, pursuant to leading examination, that
‘‘yes,’’ he did attend a meeting at Nicklebees’ restaurant
about October 22, 1993. He testified that present were Stultz
and Union Business Agent Gene Bock. Gamino testified that
at the meeting Stultz told him that he would no longer re-
ceive preferential assignments for union business. Gamino
failed to testify in direct examination about anything else
stated at that meeting. Bock’s duties up to that time had been
to negotiate and police the compliance of collective-bargain-
ing agreements and to resolve problems arising thereunder.
Bock’s testimony was inconsistent with that of Gamino. Ac-
cording to Bock, Gamino complained of being denied pref-
erential union business assignments even before the
Nicklebees’ meeting, at which Gamino testified that he was
given first notice of such. Bock testified that it was in con-
sequence of Gamino’s complaint that the meeting was held
at Nicklebees on that same day in late September. Bock testi-
fied that at the meeting at which other business was also dis-
cussed he asked Stultz if Respondent had changed its policy
toward preferential assignments for servicing the satellite ter-
minals and that Stultz responded that it ‘‘wasn’t company
policy, it was a policy by 705 by the letter directed to him
by Mr. Zero,’’ (i.e., Bock testified that he believed that is
what Stultz said). In essence, he explained, Stultz claimed
that Zero had changed the policy. The only letter adduced
into evidence from Zero was the September 16 notification
of the appointment of a domiciled steward at Elk Grove. It
is unclear from Bock’s testimony whether Stultz had ref-
erence to it or to some other document. Bock testified that
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the meeting lasted about an hour but gave no further account
of it.
Bock testified that prior to this meeting in August 1993
Union International Representative Jim Buck instructed him
to conduct a survey of various trucking companies to ascer-
tain whether there was a consensus among unit members
about having domiciled stewards at each terminal. Buck told
him that he wanted to appoint domiciled stewards at all out-
lying terminals instead of having roving stewards servicing
them out of CGB. Thereafter, for the next several weeks,
Bock traveled to each terminal to discuss the issue with the
unit employees. He testified that he ‘‘probably’’ talked to the
managers and informed them of his intent. He testified that
thereafter no domiciled stewards were appointed at any ter-
minal, except for Tom Schneider at Elk Grove because of
unusual problems there related to the merger of that terminal
with the Melrose terminal, which he explained required daily
representation.
In cross-examination Bock admitted that in their conversa-
tion Stultz told him that Respondent’s cessation of pref-
erential steward assignments was based on Stultz’ ‘‘interpre-
tation’’ of the Union’s position to appoint domiciled stew-
ards and, accordingly, Cross and Gamino’s service at outly-
ing areas was therefore no longer needed. Further, Bock ad-
mitted that he told Stultz in response that there would be fur-
ther communications about whether CGB stewards would
continue to service the satellite terminals. His testimony on
this point is oblique. He thought that there had been some
sort of ‘‘preliminary hearing’’ on the subject but he was un-
aware of what transpired thereafter because he ceased serving
as the service agent for Respondent and was replaced by an-
other unidentified business agent who did not testify.
In redirect examination Bock then recalled that he told
Stultz that it was not ‘‘necessarily true’’ that the Union had
decided on a change in policy (i.e., it was still seeking a con-
sensus of unit members). He had no knowledge about wheth-
er or not the Union thereafter made some overt attempt to
appoint a steward at WEE because he was not involved with
the appointment process.
Stultz testified about having had a meeting alone with
Bock that preceded the meeting with him and Gamino to-
gether. Stultz’ credibility regarding that meeting is critical
and it was essential that he be contradicted with forceful,
convincing, clear, and certain testimony by Bock. Such testi-
mony was not forthcoming from Bock, who hesitantly testi-
fied in rebuttal direct examination as follows,
Q. Do you recall having a conversation with Mr.
Stultz about the placement of stewards at Yellow
Freight facilities?
A. I don’t recall. Prior to the meeting that we had
at Nicklebee’s, I don’t recall if I had discussed that
with him prior to that or the day I called him. I can’t
answer, I just can’t recall.
Thereafter, he was unable to recall whether he told Stultz
that stewards would be ‘‘placed’’ at all terminals nor a con-
versation wherein Bock stated that the only terminal that
would not need a steward was that at Palatine, Illinois.
The General Counsel adduced the testimony of no other
witnesses on behalf of the preferential steward assignment
issue. Bock’s account of the Nicklebees’ meeting was not
corroborated by Gamino from whom the General Counsel
elicited merely a terse conclusion regarding its outcome. In
view of Bock’s uncertainty, as expressed in his testimony as
well as his demeanor, his failure to testify with specificity,
his failure to categorically contradict Stultz, his lack of cor-
roboration, and his incompetence to testify about events after
he ceased servicing the bargaining unit, I must credit the
more certain and detailed testimony of Stultz. Accordingly,
I find that the following interaction between Respondent and
the Union occurred in relation to the cessation of the union
steward preferential assignment practices.
Stultz received reports from the manager of the Elk Grove
and WEE terminals informing him that Bock had conducted
meetings concerning the possibility of the appointment or
election of stewards at each satellite terminal. Thereafter,
Bock spoke with Stultz. In that conversation, Bock told
Stultz that he did not want to continue the practice of using
CGB traveling stewards. Rather, the Union decided that a
lack of adequate representation was prevalent in the industry
except for UPS and RPS where there was a substantially
lower ratio of stewards to union members. Bock then told
Stultz that the Union would place a domiciled union steward
at Elk Grove and West Chicago terminals. He said, however,
that there was no need to place one at the smaller Palatine,
Illinois terminal because Bock, who lived in nearby Crystal
Lake, would service it personally. Stultz responded that the
change was ‘‘fine.’’ Stultz immediately called the appropriate
managers and notified them of the cessation of preferential
steward assignments for CGB stewards because of the
Union’s change to domiciled stewards.
Stultz had met subsequently with Bock and Gamino at
which was discussed other business relating job bidding. The
subject of preferential steward assignments was not raised.
Stultz heard nothing further from Bock on that issue.
In November 1993 Union Representative Benny Leonardo
contacted Stultz and asked whether Respondent would agree
to give Cross preferential union business assignments to
WEE. Gamino’s status was not raised by Leonardo. Stultz
responded that Cross himself was not the issue but rather the
Union had asked the Respondent to cease the preferential
union steward assignments and it had done so. Stultz advised
Leonardo to talk to his unit members at the satellite terminals
who would tell him of their disenchantment with the Union’s
lack of domiciled representation. Stultz told Leonardo that
the cessation of the past preferential assignment practice was
fine with Respondent and that it wanted it to remain so.
Stultz told Leonardo that the Union was free to name as
many stewards as it desired in the satellite facilities.
Leonardo responded, ‘‘Well, we will think about it.’’
Leonardo contacted Stultz twice thereafter and asked if the
Company had changed its position. He was told that it had
not. No grievance was ever filed over the issue.
Negotiations commenced for a succeeding collective-bar-
gaining agreement on December 22, 1993. An agreement
was reached in May. At no time was the issue of preferential
traveling assignments to stewards raised during those nego-
tiations although there were modifications made regarding
stewards. The contract remained silent on the issue of stew-
ards’ right to travel from one satellite to another in the rep-
resentation of unit employees there. The grievance filed by
Cross with respect to his warning letter was discussed with
the Union and denied by Respondent and went no further.
123YELLOW FREIGHT SYSTEM
During all these interactions at no time did the Union request
an opportunity to discuss and bargain over Respondent’s de-
cision to abide by the agreement to cease preferential travel
assignment to union stewards it had reached with Bock.
D. Analysis
1. Threat of reprisal—8(a)(1) violations
During Cross’ confrontation with Van Dyke, Cross was
told that pursuance of his complaints about Zimmerman
would not do him any good. When Cross demanded to know
whether it would adversely affect his employment situation,
Van Dyke, by answering that Cross could take any implica-
tion he wanted out of the remark, logically implied that retal-
iation was probable. At the time Cross’s complaint was en-
twined with his then-pending unfair labor practice charge. I
conclude that Van Dyke, in effect, thus threatened Cross
with unspecified retaliation. At the very least, I conclude that
Van Dyke’s response was calculated to be logically inter-
preted by Cross as a statement to him that he had incurred
an unspecified job status vulnerability because of having en-
gaged in protected activities, including the filing of an unfair
labor practice charge.
The General Counsel, citing United Parcel Service, 301
NLRB 1142, 1150 (1991), argues that such conduct violated
Section 8(a)(1) of the Act. I agree and I so find that by such
conduct Respondent violated Section 8(a)(1) of the Act.
2. Warning letters—alleged 8(a)(1) violations
a. Frazier’s warning letter
The General Counsel recognizes that she has the burden
of making a ‘‘prima facie showing sufficient to support the
inference that protected conduct was a ‘motivating factor’ in
the employer’s decision,’’ and that only thereafter does the
‘‘burden shift to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct.’’ Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
There is no dispute that Frazier’s recourse to the assistance
of steward Cross in the counseling session of July 8 was pro-
tected activity. The facts fail to disclose Respondent’s ani-
mosity toward union assistance to an employee in coaching
sessions. The Union’s sister local freely participated in them.
The Union tended to avoid them although Cross himself had
participated in several. There is no evidence of past animos-
ity toward Cross’ participation in coaching sessions or griev-
ance procedures. The only basis to support an inference of
animosity toward Frazier or Cross himself is Zimmerman’s
dislike of the manner of Cross’ participation in the July 8
session.
The factual findings foreclose any inference that Cross’
behavior even partially motivated the issuance of a warning
letter to Frazier. If it had it would have constituted unlawful
motivation. As cited by the General Counsel the Board will
not withhold protection from employees who seek the assist-
ance of a union representative in an investigative interview
that may lead to discipline because of the unprotected con-
duct of the union representative during that interview. New
Jersey Bell Telephone Co., 308 NLRB 277 (1977) (dealing
with employees’ and union representative rights in such
interviews as defined by NLRB v. J. Weingarten, Inc., 420
U.S. 451 (1975)).
The facts herein disclose that Frazier chose not to partici-
pate meaningfully in a coaching session and was given a
warning letter because he chose not to avail himself of the
alternative to the first-step discipline. Because of the serious
nature of sexual harassment issues, the need to avoid a sexu-
ally hostile environment, and the implications of potential
punitive liability, the Respondent understandably viewed seri-
ously the situation that Zimmerman had directly witnessed.
The Respondent clearly wanted to ascertain whether Frazier
understood its policy and to educate him about its sexual har-
assment policy. It felt that such purpose warranted a second
attempt at coaching and Frazier was notified at the outset,
prior to any overt behavior by Cross, that he was given a
choice—participate or receive a warning letter. Frazier chose
to reject the coaching process, not merely by refusing to sign
the form but by manifesting a total nonreceptivity to any
counseling on the subject of sexual harassment on both July
7 and 8.
I conclude that the issuance of a warning letter to Frazier
was not shown to be even partially motivated by Respond-
ent’s animosity toward Cross’ behavior but, that even if such
existed, Respondent proved that Frazier would have received
the warning letter regardless of Cross’ conduct on July 8.
The General Counsel failed to adduce probative, credible evi-
dence of a disparity of treatment to Frazier and failed to
produce credible evidence to contradict Respondent testi-
mony about its past practice with respect to issuance of
warning letters on rejection of employee participation in
coaching sessions. Accordingly, I find the complaint allega-
tions relating to Frazier to be without merit.
b. Cross’ warning letter
The General Counsel relies on certain Board precedent
wherein the Board set forth a wide tolerance for exuberant,
discourteous conduct or rude language by union representa-
tives engaged in during grievance or other collective-bargain-
ing negotiations (e.g., Severance Tool Industries, 301 NLRB
1166 (1991); and Syn-Tech Windows Systems, 294 NLRB
791 (1989)). The Respondent recognizes that precedent but
argues that Cross was not engaged in grievance processing
nor in negotiations, nor in representing an employee in the
disciplinary process. The Respondent argues that the standard
by which Cross’ behavior should be judged is the more re-
strictive one applied to a union representative in a
Weingarten situation. The General Counsel, although citing
New Jersey Bell, ignored the distinction discussed therein by
the Board, supra at 279. There, the Board agreed with the
judge’s observation that the ‘‘permissible extent of participa-
tion of [Weingarten] representatives in interviews is seen to
lie somewhere between mandatory silence and adversarial
confronting,’’ citing Postal Service, 288 NLRB 864, 867
(1988). The Board held that a ‘‘careful balance’’ must be
struck ‘‘between the right of an employer to investigate the
conduct of its employees at a personal interview, and the role
to be played by the union representative.’’
In New Jersey Bell, above, the Board concluded that pur-
suant to the Supreme Court’s intention it is the role of the
union representative to provide assistance and counsel to the
employee being interrogated, but that his presence ought not
‘‘transfer the interview into an adversary context or a collec-
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Furthermore, I find the egregiousness of Cross’ conduct far in
excess of that kind of rudeness and ‘‘salty language’’ tolerated by
the Board in the precedent cited by the General Counsel above.
3 Compare Lapeer Foundry & Machine, 289 NLRB 952 (1988).
tive-bargaining confrontation and that the exercise of the
Weingarten right must not interfere with the legitimate em-
ployer prerogatives.’’ The Board concluded that the union
representative need not be a ‘‘passive observer,’’ but rather
he was free to ‘‘counsel the employees,’’ but could not ‘‘ob-
struct the employer in exercising the legitimate prerogative
of investigating employee misconduct.’’ In the New Jersey
Bell case, the Board found that the union representative
therein forfeited his right to remain on the employer’s prem-
ises as the employee representative and was therefore law-
fully ordered out and, on refusal, lawfully caused to be ar-
rested and charged with trespass. The conduct of the union
representative in that case amounted to advising the em-
ployee to answer questions only once and to prevent ques-
tioning by the employer by that representative’s persistent
objections and interruptions.
Both Union and Respondent agreed that a coaching ses-
sion is not equivalent to the issuance of discipline. Further-
more, it consists of an interview during which the employ-
ee’s attitude is probed and, as argued by Respondent, it can
lead to discipline depending on the cooperation of the em-
ployee or lack thereof in the process. In this case Zimmer-
man had witnessed the incident and, therefore, he did not
have to investigate the incident nor interrogate Frazier to as-
certain what had been said. From that aspect the July 8 inter-
view arguably deviated from the typical Weingarten situa-
tion. Zimmerman’s objective was to avoid discipline by
probing Frazier’s attitude, sensitivity, and receptivity to un-
derstanding Respondent’s sexual harassment policy and to ef-
fectuate such understanding. From that perspective the inter-
view was in part investigatory. The second objective was in-
formational (i.e., to convey Respondent’s policy to him). The
final aspect would have been to ascertain whether Frazier
comprehended that policy (i.e., in a sense also an investiga-
tory process).
I conclude that the July 8 interview was essentially a
Weingarten type interview wherein Respondent was entitled
to the managerial prerogatives of such interview. Moreover,
I conclude that even if the July 8 interview did not strictly
constitute a Weingarten type interview it was sufficiently
akin to it that the same rationale regarding managerial pre-
rogative ought to comply. I conclude that Respondent had
the prerogative to inquire and probe into Frazier’s sensitivity
to the issue of sexual harassment and his receptivity to com-
prehension of Respondent’s policy and to educate meaning-
fully about such (whether or not Respondent was actually
correct concerning the legal definition of sexual harassment).
I further conclude that Cross was not entitled to disrupt the
process by verbally abusive and arrogantly insulting interrup-
tions, by conduct that grossly demeaned Zimmerman’s mana-
gerial status in front of an employee and fellow manager and
that consisted of violent desk pounding and shouted obsceni-
ties, and finally by point-blank falsely calling Zimmerman a
liar and thereby refusing to immediately leave the office.
Cross was not entitled to convert the coaching session into
an adversarial confrontation nor into a negotiation of an un-
derstanding of what constitutes sexual harassment. By so
doing, and by doing it in the manner described above, I find
that he lost the protection of the Act.2 Accordingly, I find
the allegation of the complaint relating to his warning letter
to Cross to be without merit.
E. Elimination of Preferential Steward Assignments—
Alleged 8(a)(1), (3), and (5) Violations
The General Counsel relies on Postal Service, 263 NLRB
357 (1982). That is a case when union stewards were re-
stricted in their ability to process grievances by the unilateral
recission of a past practice of promptly releasing them from
work duties to handle grievances. The Board therein dis-
missed the complaint, however, because the charge was
short-lived and past practice reinstated. The General Counsel
argues that an 8(a)(5) violation must be found herein because
the change was not temporary. The General Counsel is silent
in the brief about the issue of discriminatory motivation. The
evidence failed to disclose any animus toward Gamino or to
grievance activity at the outlying terminals. Presumably, the
complaint is premised on the theory that Respondent, in part,
rescinded its past practice because it became so enraged with
Cross that it changed its entire policy of preferential travel-
ing assignment to CGB stewards just to keep him restricted
to the main terminal. The foregoing factual findings preclude
findings of either 8(a)(3) or (5) violations. The factual find-
ings fully support Respondent’s contention that the change
was not unilateral nor was the Union denied notice and bar-
gaining opportunity. Rather, the credited facts disclose that it
was the Union that initiated and requested the change, in
order to place domiciled stewards at the satellite terminals
and terminate traveling stewards, and that the Respondent
immediately agreed to and implemented the new policy.
Even Bock admitted that Respondent interpreted the Union’s
plan for domiciled satellite stewards to necessarily mean a
cessation of traveling stewards and thus the need for pref-
erential steward assignment. Thus, even if Bock were cred-
ited, which he is not, Respondent notified the Union of its
intention to implement the no-preferential assignment policy
as a rational consequence of its interpretation, and Bock’s re-
sponse was that the Union would subsequently negotiate the
issue that to his knowledge it never sought to do so. Argu-
ably, the Union under Bock’s admission, by subsequent
interaction, waived the right to bargain over the cessation of
preferential steward assignments.3 It is not necessary to re-
solve the issue of waiver, however, in view of my findings
that the Respondent acted on an agreement reached between
Stultz and Bock to which Bock did not thereafter object.
Leonardo’s efforts to later obtain preferential assignments for
Cross and the apparent failure of the Union to follow through
and actually appoint satellite stewards does not detract from
the fact that the agreement had been reached. Had the Union
changed its mind, however, it never requested Respondent to
thereafter renegotiate the matter. Leonardo’s last comment to
Stultz was that the Union would ‘‘think it over.’’ Under
these facts I find that the allegations of the complaint relating
to the cessation of preferential shuttle assignments and shift
start assignments to stewards to be without merit. I further
125YELLOW FREIGHT SYSTEM
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
find it unnecessary to discuss the defense that such practice
had been unlawful under Dairylea Cooperative, supra.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices only
to the extent found in the above analysis section of this deci-
sion, which unfair labor practices affect commerce within the
meaning of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I rec-
ommend that it be ordered to cease and desist therefrom and
take certain affirmative action to effectuate the purposes of
the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Yellow Freight System, Inc., Chicago
Ridge, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening any of its employees with unspecified re-
prisals for filing charges with the National Labor Relations
Board.
(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 all its Chicago, Illinois area terminals located
at Chicago Ridge, Wheeling, Elk Grove, West Chicago, and
Palatine, Illinois, copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately 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.
All allegations in the complaint not found violative of the
Act in this decision are dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten any of our employees with unspec-
ified reprisals for filing charges with the National Labor Re-
lations Board.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of rights guar-
anteed them under Section 7 of the Act.
YELLOW FREIGHT SYSTEM, INC.