Yellow Freight Systems, Inc

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 322 (N.L.R.B. 1989)

322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Yellow Freight Systems, Inc and Lonnie Bedell
Case 22-CA-15817
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On May 18, 1989, Administrative Law Judge
James F Morton issued the attached decision The
Respondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Yellow
Freight Systems, Inc , Elizabeth, New Jersey, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order
' The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
In agreeing with the judge s credibility resolutions regarding events on
the day of Bedell s discharge we find it unnecessary to rely either on the
judge s finding that there had been no rumors that Bedell possessed a gun
or on the judge s speculation that if Snudt really believed Bedell had a
gun Snudt would have swiftly disarmed or dismembered Bedell We
note that considering Smidt s evasive demeanor while testifying the
judge concluded that Snudt s claim that Bedell had behaved in a threat
emng manner was untrue
We correct the following Inadvertent errors of the judge Bedell
worked for the Respondent 4 years and 3 months not 5 years Kenneth
Dore was the operations manager at the Elizabeth terminal not the ter
mina] manager and the correct spelling of the names of the following
individuals is Chuck Gruppusso and Joann DeGrosa
Maria E Balzano Esg and Renee I Crain Esg for the
General Counsel
Jeffrey I Pasek Esg and Paul J Russomello Esg (Cohen
Shapiro Polisher Sluekman & Cohen) of Philadelphia
Pennsylvania for Yellow Freight Systems Inc
DECISION
STATEMENT OF THE CASE
JAMES F MORTON Administrative Law Judge The
complaint alleges that Yellow Freight Systems Inc (Re
spondent) violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by discharging Lonnie
Bedell from its employ because he assisted another em
ployee in filing a charge against Respondent with the
United States Equal Employment Opportunity Commis
sion (EEOC) and because he filed a charge with EEOC
alleging that Respondent then retaliated against him
both of which are matters assertedly covered by a col
lective bargaining agreement Respondent has with a
labor organization
Respondent s answer denies that allegation and states
also that Bedell s alleged activity `on behalf of another
employee was not protected by the Act, based on Re
spondent s contention that the other employee had been
a confidential employee Further Respondent asserts that
the Board should defer to the findings in an arbitration
award that upheld Bedell s discharge
The hearing on the complaint was heard in Newark
New Jersey on November 28 and 29, and on December
5 and 20 1988 On the entire record including my obser
vation of the demeanor of the witnesses and after due
consideration of the bnefs filed by the General Counsel
and Respondent, I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
The pleadings establish and I find that Respondent is
engaged in the interstate and intrastate transportation of
freight and that its operations meet the Board s applica
ble jurisdictional standard Further I find also based on
the pleadings, that Local 641 International Brotherhood
of Teamsters, Chauffeurs Warehousemen and Helpers of
America AFL-CIO (Local 641) is a labor organization
as defined in Section 2(5) of the Act
Ii THE ALLEGED UNFAIR LABOR PRACTICE
A Background
Bedell was discharged on February 3 1988 from his
employment by Respondent as a dockman at its Eliza
beth New Jersey terminal General Counsel contends
that his discharge was the culmination of a series of har
assing tactics begun in 1986 when he was working at Re
spondent s Carlstadt New Jersey terminal General
Counsel is precluded by the limitations period of Section
10(b) of the Act from asserting that the alleged acts of
harassment constitute unfair labor practices under the
Act To put General Counsel s contention in perspective
and also to be able to evaluate Respondent s assertions it
is necessary to consider first certain events that occurred
at the Carlstadt s terminal in 1986 and other events that
occurred at Local 641 meetings
Bedell has worked for about 30 years as a dockman in
the freight transportation industry the last 5 years for
Respondent In 1986, he was working on the night shift
at Respondent s terminal in Carlstadt Kenneth Dore was
the branch manager there and Dan Hamlin was the sales
manager Jo Anne DeGrosa was an office employee
there
B Events in April 1986
Bedell testified as follows In April 1986 he was in the
parking lot at the Carlstadt terminal just prior to the
297 NLRB No 50
YELLOW FREIGHT SYSTEMS 323
start of his shift when he noticed that a woman was
crying and that she had dropped her car keys while
trying to open her car He asked her if he could help
She told him that she had been subjected to sexual har-
assment by Dore and Ham1m Bedell calmed her down
and told her he would talk to his shop steward The
woman was DeGrosa
Local 641 represents the dockmen at Carlstadt It also
represents the office employees there
Bedell testified that he saw the shop steward, Charles
Kaminski, the next evening and asked him to speak to
Dore about what DeGrosa had told him Bedell further
related that, on the following day, Dore told him,
Bedell, that Kaminski had spoken to him about DeGross
and that Dore also told him that DeGrosa "is not a
union person and that's none of your business" Bedell
testified further that he answered that he felt it was his
business and that Dore walked away, saying again that it
was none of Bedell's business
Kaminski was called as a witness by Respondent He
testified on his direct examination on various matters but
not as to his conversation with Bedell in April 1986 per-
taining to DeGrosa Dore also testified for Respondent
He answered in the negative when asked, on his direct
examination, whether he was aware of any efforts made
by Bedell to help DeGrosa prior to her discharge in July
1986 I credit Bedell's detailed account, which was, in
material respects, corroborated by DeGrosa
C Incidents Involving EEOC in 1986 and 1987 and
Alleged Harassment
In addition to the above-described incidents in April
1986, the following evidence was proffered by the Gen-
eral Counsel as to Bedell's ,alleged protected activities
and Respondent's hostility to them
DeGrosa was discharged on July 11, 1986 Bedell took
her to the office of the New Jersey Division of Civil
Rights on several occasions thereafter, including August
29, 1986, when she filed a charge of discrimination
against Respondent, alleging therein sordid details of
sexual harassment purportedly committed by Dore and
Hamlm
On November 29, 1986, according to Bedell, he posted
on Local 641's bulletin board at the Carlstadt terminal, a
newspaper advertisement which promoted a special
report on the subject, "Sexual Harassment on the Job" to
be shown on a television pews program throughout that
week Bedell testified that Respondent's operations man-
ager, John McNamara, was present when he posted that
advertisement Bedell testified, without contradiction,
that one of Respondent's supervisors, Chuck Gruppiano,
asked him what the posting was all about and that he re-
plied that Dore and Hamlm "shouldn't have done that to
Joanne DeGrosa "
Bedell testified that, soon after he posted the newspa-
per advertisement on the subject of sexual harassment, he
was given more arduous work assignments in retaliation
Thus, he testified that before December 1986, he, as the
most senior dockman at Carlstadt, had rarely been as-
signed heavy loads to move and when he was assigned
to heavy loads, he had been given a forklift truck to
move them In December 1986, according to Bedell, all
that changed, he had to "walk" heavy loads almost ev-
eryday Bedell testified that Respondent also began to
assign him regularly to work in an area in front of
Dore's office and in "the hazardous area" The latter is
an area where corrosive liquids are stored which on oc-
casion leak Bedell's testimony is that these onerous as-
signments continued until the end of July 1987 when
Dore was removed as branch manager at Carlstadt
Respondent called witnesses who testified in substance
that Bedell was never treated differently from any other
employee, except that it kept him under close supervision
because he was not a productive worker Respondent's
witnesses testified that it kept no records of his produc-
tivity or lack thereof and that it could not issue a warn-
ing to a dockman even if his productivity was poor
Records subpoenaed by General Counsel disclose that
Respondent has issued written warnings to an employee
for, inter aim, poor productivity
Bedell's account was corroborated by John Buch-
muller, a dockman who worked at Carlstadt with Bedell
The parties stipulated that three other dockmen there, if
they were called as witnesses would testify as Buch-
muller did I credit Bedell's testimony as to his receiving
more arduous work assignments while under Dore at
Carlstadt for the perthd December 1986 to July 1987
Bedell's account did not appear to be contrived and it
was independently corroborated, Respondent's explana-
tions were unconvincing and the limited documentary
evidence did not support them
Bedell uncontrovertedly related the following incident
In May 1987, Dock Supervisor Gruppiano posted on Re-
spondent's bulletin board at Carlstadt an excerpt from a
handbook which pertained to EEOC rules Bedell asked
Gruppiano if he could look at the handbook, stating to
Gruppiano that there has to be something in it on the
subject of sexual harassment Gruppiano gave him the
book Bedell testified that the subject of sexual harass-
ment was discussed on page 43 of the handbook He
asked Gruppiano for a copy of the handbook Gruppiano
replied that he would have to clear the request with
Dore Two hours later, according to Bedell, he repeated
his request of Gruppiano when he saw him Gruppiano
then stated, according to Bedell, that Dore "went off the
wall" when he heard of the request, that Dore told him
not to give Bedell a copy and that Dore also told him
that he should never even have shown the handbook to
Bedell Again, I credit Bedell's uncontroverted testimo-
ny
Bedell testified as follows to an order he received later
that month from an operational supervisor at Carlstadt,
Robert Sparks He was ordered to finish unloading a
trailer, then one quarter full, by lunchtime It was then
20 minutes before lunch When Bedell said that he could
not possibly finish before lunch, Sparks told him that he
would have to see Dore with his steward if he did not
finish by lunch' Later that day and after it had taken him
2 hours to empty the trailer, Sparks told him that, if he
cannot handle the pressure, he should retire Sparks testi-
fied and denied that he had harassed Bedell in any way
I credit Bedell's detailed account
'--
324 .' DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I
Bedell also gave the following uncontroverted testimo-
ny respecting a remark made to him by Dock Supervisor
Mike Lensack in May or June 1987 While making a
dock check at the time the shifts were changing, Len-
sack said to Bedell, "you're going to get yours" Bedell
asked what that meant Lensack gave him an angry look
and kept walking I credit Bedell's account as to this in-
cident
On July 28, 1987, Dore issued a letter to Bedell warn-
ing him for having left work early on July 18 Bedell
saw Dore and told him, in substance, that he does not
take time off from work without a gook reason Dore
looked at Bedell's file and observed that it was true that
Bedell does not "lose work" Dore left the Carlstadt fa-
cility on July 30 His replacement, John McNamara, sent
Bedell a letter on July 31, rescinding the July 28 warn-
ing
D Bedell's Transfer to Elizabeth
In early October 1987, Respondent decided to open a
terminal in Elizabeth, New Jersey Its employees at the
Carlstadt terminal were notified that, if they wanted to
be eligible to transfer there, they had to sign a register
on or before November 13, 1987 Bedell waited until
almost the last moment before signing that register Ac-
cording to him, he signed it because the assistant shop
steward, Peter Enrico, had informed him that he was not
going to sign that register His testimony indicates, that,
notwithstanding, Ennco then signed the register Bedell
was aware then of a rumor that Dore would be the ter-
minal manager at Elizabeth when it opened
Bedell, who at one time had been a shop steward, was
aware when he signed the register, that the Local 641
contract contained a provision whereby employees who
transferred had a 30-day grace period during which they
could return to their former terminal However, Local
641's business representative, John Bowers, informed the
Carlstadt employees 2 weeks later that the 30-day return
provision would not apply to the transfers to Elizabeth
The Elizabeth terminal opened on December 7, 1987
Bedell reported to work there the next day Dore was
terminal manager there
E Alleged Harassment of Bedell at Elizabeth
Among the first assignments Bedell received when he
reported on December 8 was an order given him by Re-
spondent's shift operations manager, Peter Esposito, to
clean the coffee room That job is the responsibility of
porters who were working there then Respondent of-
fered evidence that it had decided to assign the most
senior man on each shift to clean the coffee room in
order that he might set an example for the other dock-
men That explanation strikes me as highly suspicious
Bedell's testimony is that Respondent's supervisors,
during the 2-month period he worked in Elizabeth until
his discharge, assigned him to put heavy loads in carts
and to walk them instead of permitting him the use of a
forklift truck or of the drag line The drag line is a cable
that pulls carts along to the stations where they are un-
loaded In contrast to the treatment given him, according
to Bedell, the other dockmen who were all less senior to
him used the drag line every day Bedell's testimony too
is that he unlike other dockmen, was frequently assigned
to work directly in front of a supervisor's desk and that
he was never assigned a helper, except for one occasion
On that occasion, he had sought to use a forklift truck to
move a rug but a supervisor told him not to use it and
instead assigned a dockman to help him carry the rug
Respondent offered testimony that Bedell did have use
of the drag line, was given forklifts and helpers and that
it frequently assigned him to work directly in front of a
supervisor because his productivity was poor Bedell's
account is the more persuasive and I accept it
F Bedell's Discharge
General Counsel contends that Respondent's harass-
ment of Bedell culminated in his discriminatory dis-
charge on February 3, 1988 Respondent asserts that
Bedell was discharged solely because he assaulted, and
thereby placed in fear of bodily harm, a dock supervisor
on that day
On January 19, 1988, Bedell filed a charge of discrimi-
nation with the New Jersey Division of Civil Rights, al-
leging therein that Respondent has been constantly har-
assing him since 1986 because he "opposed" Dore in
having assisted DeGrosa's claim that she had been sub-
jected to sexual harassment That charge was served on
Respondent that same day Bedell testified that he filed
that charge after Local 641 officials had told him that
they could do nothing for him until DeGrosa withdrew
her claim against Dore
On February 3, 1988, Bedell was assigned to unload 40
cartons, each weighing 24 pounds, from a truck and to
bring them to another location on the shipping dock He
placed 15 of these cartons in one cart, also called a
wheeler, and 11 in a second cart He moved those carts
about 15 feet away and was in the process of unloading
the remaining cartons from the truck onto a third cart
When he had placed about seven of the remaining car-
tons into that cart, his supervisor, Joseph Smidt, came
by Smidt ordered him to consolidate the shipment of the
40 cartons in two carts, not three Each cart weighs be-
tween about 160 pounds and 200 pounds and when
loaded with 20 cartons at 24 pounds, each cart would
weigh another 480 pounds
Bedell testified that he was in the process of comply-
ing with Smidt's order in that he continued to unload the
truck onto the third cart which he then would have
wheeled over to the first two, he related that he, at that
point would divide the contents of the third cart into the
first two and walk those to the shipping location While
in the process of unloading the truck, Bedell was asked
by Smidt if he was going to comply with the order he
was given Smidt told him he was disobeying a direct
order Bedell responded according to his account, by
stating that he was not disobeying an order and that he
(Bedell) was not a "piece of shit" Bedell testified that he
made that remark because of the way he was being har-
assed since he came to the Elizabeth terminal
Smidt's account of this incident is that, when he asked
Bedell if he intended to comply with a direct order,
YELLOW FREIGHT SYSTEMS 325
Bedell said in a loud voice, "No, Joe, and you're a big
piece of shit"
General Counsel and Respondent called witnesses to
corroborate the respective accounts of Bedell and Smidt
It is unnecessary to decide that credibility issue as Re-
spondent asserts that Bedell was discharged because of
what transpired after the exchange between Bedell and
Smidt Were it necessary to resolve that credibility issue,
I would credit Bedell as, for the reasons discussed below,
I find that Smidt's testimony cannot be relied on
Respondent asserts that, right after Bedell and Smidt
had their discussion on February 3, Bedell's actions put
Smidt in imminent fear of bodily harm and that Bedell
thereby had committed a dischargeable offense as con-
templated by the provisions of the collective-bargaining
agreement Respondent has with Local 641 The General
Counsel contends that Bedell engaged in no such assault
and that Respondent contrived the account in order to
discharge Bedell because he had pressed DeGrosa's
claim of sexual harassment and his own claim that he
was also being harassed by Respondent because he had
helped her
Local 641's contract, according to a stipulation re-
ceived at the hearing, provides that Respondent will not
engage in any unlawful discrimination, including that
based on one's sex
In support of Respondent's contention, Respondent of-
fered the following
Smidt testified as follows as to what transpired after
the verbal exchange he had with Bedell on February 3
Bedell came toward him with a crazed look in his eyes
and with his arms moving up and down repeatedly and
in an agitated manner Smidt became terrified He,
Smidt, was aware of rumors that Bedell owned a gun
and thought that Bedell might have one inside the winter
clothing he had on He, Smidt, then ran to Dore's office
Later in his testimony, Smidt related that, when he saw
Bedell coming towards him, he turned and walked quick-
ly to Dore's office
Bedell's account as to what happened after the verbal
exchange is as follows When he told Snudt that he,
Bedell, was not a piece of shit, Smidt walked away and
spoke into a "walkie-talkie" Smidt asked Pete Esposito,
the shift operations manager, if he had heard what had
transpired Esposito was about 30 to 40 feet away Smidt
walked towards Esposito and talked with him Esposito
had a puzzled look on his face Smidt talked further with
Esposito and then turned toward Bedell to order him to
go to Dore's office because he had disobeyed a direct
order and because he had assaulted him, Smidt Smidt, is
6 feet, 2 inches tall, weighs 260 lbs , and is about 20
years younger than Bedell Bedell is 5 feet 10 inches and
weighs 170 lbs Bedell's hair is graying and he wears
thick glasses Smidt has the following accomplishments
in martial arts—national champion in Judo, East Coast
Champion in Judo, and Long Island Champion in
Karate
I have considerable difficulty in accepting Smidt's tes-
timony that he was terrified of Bedell on February 3
First, Smidt physically compared to Bedell, is immense
If he really believed that Bedell had a gun, I am certain
that he would have very quickly pinned Bedell's arms to
his sides should Bedell have made any effort to reach
into or beneath his winter clothing to retrieve a gun
Bedell likely would have found himself swiftly disarmed
and indeed, perhaps dismembered by Smidt Secondly, it
is highly unlikely that Smidt would have turned his back
on Bedell and walked quickly away as he testified, if he
was afraid that Bedell might shoot him Thirdly, General
Counsel's brief lists about 50 transcript references where
Smidt answered, "I don't know" or "I don't remember"
or "(no response)" to questions posed to him on cross-
examination For example, he testified that he could not
remember if he was afraid because of the way Bedell's
arms were swinging, or because of the crazed look he
had said was in Bedell's eyes, or because of Bedell's phy-
sique It seemed to me that Smidt was masking his real
feeling behind a professed inability to recall why he was
afraid Rather, I sensed from his responses that the very
idea that he could be afraid of Bedell annoyed him and
that he found it easier to answer that he could not recall
why he was afraid Fourthly, Shift Operations Manager
Esposito's own testimony reveals that he had no fear of
Bedell's supposedly "crazed" look or of Bedell's using a
gun Esposito related that he had gone directly over to
Bedell to instruct him to report to Dore's office
Fifthly, Smidt's account that he was aware of a
"rumor" that Bedell carried a gun at times is unpersua-
sive Respondent presented several witnesses in an effort
to establish that this "rumor" was widespread That
effort, in my judgment, was not very successful Thus,
Respondent called Robert Miller to demonstrate that, in
1987, Bedell had threatened to use a gun and had one on
his person then Miller is a Local 641 steward at another
terminal and, in 1987, supported certain candidates for
Local 641 offices in an intraunion election then Bedell
supported opposing candidates Miller and Bedell gave
conflicting accounts as to an argument they had then
Without belaboring the point, I do not credit Miller's tes-
timony that Bedell, while drinking at a bar showed
Miller a gun, and when he threatened to use it, Miller
called Bedell a "faggot" and in effect dared Bedell to use
the gun This account strikes me as improbable I cannot
believe that Miller would have so taunted Bedell if
Bedell was drinking and threatened to use a gun Even
more absurd is Miller's other testimony that Bedell acts
in a "macho" manner Bedell's personality is entirely low
key Respondent also called its director of security to
testify about the rumor that Bedell carried a gun He re-
lated that Michael Curley, Respondent's break bulk man-
ager at the Elizabeth terminal, asked him in January 1988,
for advice as to Respondent's potential liability concern-
ing a rumor that Bedell was alleged to be carrying a fire-
arm and, he advised Curley that there was nothing Re-
spondent could do as it was based on "speculation and
hearsay" The director of security further testified that
Curley asked him to check further as to New Jersey
penal law, and that the law confirmed his earlier advice
Such a cavalier approach to a purported concern that an
employee had a gun does very little to support Smidt's
account that he was afterwards terrified by Bedell's ac-
tions In short, I find the evidence most deficient to sup-
port Respondent's effort to demonstrate that there was a
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rumor that Bedell carried a gun There was no gun,
there was no rumor
G Analysis
The credited evidence discloses that Bedell in 1986 in-
tervened with Respondent on behalf of DeGrosa's claim
of sexual harassment, that he was told by Dore that he
should mind his own business and that, when he posted
an advertisement relating to the problem of sexual har-
assment on Local 641's bulletin board later that year and
also sought to learn more of Respondent's policy con-
cerning sexual harassment as contained in its handbook,
he was subjected to considerable harassment in his
work—until Dore left Carlstadt in July 1987 The harass-
ment resumed the very first day he reported to the Eliza-
beth terminal where Dore was terminal manager and it
continued until the day he was discharged The reason
given by Respondent for discharging him is spurious
Bedell's support of DeGrosa's claim, which is a matter
protected by the collective-bargaining agreement, his
own EEOC claim also protected by the contract and
which was filed shortly before his discharge, Respond-
ent's knowledge thereof, its relentless hostility to Bedell's
actions and the pretextual reason given for Bedell's dis-
charge make out a clear prima facie showing that Bedell
was discharged because he supported DeGrosa's claim of
sexual harassment by Dore
General Counsel has thus met the burden imposed
under Wright Line, 251 NLRB 1083, 1089 (1980), the
burden thereby shifted to Respondent to demonstrate
that it would have taken the same action even in the ab-
sence of union activity Respondent failed to meet this
burden as, for the reasons set forth above, its asserted
justification was a sham , In that regard, see K & M Elec-
tronics, 283 NLRB 279 (1987), and cases cited therein
Respondent simply relied on the testimony of Smidt and
other witnesses to demonstrate that Bedell had acted in a
threatening manner on February 3 I have discredited
that testimony Respondent had also sought to show that
It had discharged two employees because of similar
threats made Suffice it to note that even that its attempt
to demonstrate that Bedell was not treated in a disparate
manner was badly flawed Among other things, it ap-
pears that one of those two employees had engaged in a
number of egregious acts before his employment with
Respondent terminated In any event, I need not consid-
er the matter of disparate treatment as I have found that
Bedell had not, on February 3, assaulted Smidt
Respondent raised two collateral defenses, discussed in
the next subsections First, it asserts that DeGrosa was a
confidential employee not protected by the Act and
argues that Bedell's activity in support of her claim of
sexual harassment is not protected by the Act because it
was not done in concert with an employee covered by
the Act Secondly, Respondent asserts that the Board
should defer to the findings of fact made by the arbitra-
tor, Respondent does not now assert that the Board
should defer to the award itself
H DeGrosa's Job
Respondent's first witness in support of its contention
that DeGrosa was a confidential employee was Charles
Kaminski, a driver at the Carlstadt terminal and Local
641's steward there He testified that she was Dore's pri-
vate secretary and that she did work for Sales Manager
Dave Hamlin Local 641 represents a separate unit of
about 23 clerical employees at Carlstadt DeGrosa was
not in that unit
Dore testified for Respondent that, when he was
branch manager at Carlstadt, he hired DeGrosa as a con-
fidential secretary, that he told her she was a confidential
secretary, and that she did work for him and Hamlin He
testified that she was the only one who had access to
employee personnel files and that she typed all corre-
spondence of a confidential nature concerning perform-
ance reports, evaluations, and disciplinary actions in ad-
dition to her duties involving sales
Respondent's office manager at Carlstadt, Mary Anne
Fish, was not called by Respondent to support its claim
that DeGrosa was a confidential employee
In rebuttal, DeGrosa testified for the General Counsel
that her job title at Carlstadt was sales secretary and dis-
patcher In her EEOC charge filed in September 1986,
she asserted that she was "terminated from (her) position
as Secretary Dispatcher" As to her job duties, she testi-
fied that she spent 4 hours each day in the dispatcher's
office handling the dispatcher's phone which "rang all
day long," that she spent a half hour to an hour each day
handling "shift calls" from dockmen and that she spent
the remainder of her workday as sales secretary dealing
with salesmen, typing expense checks, preparing bills of
lading, typing sales letters and accident reports, and in
photostatmg job applications for mailing to Respondent's
principal office She testified that she typed several let-
ters that Dore gave her in longhand and that these had
to do with vending machines, yard construction work,
and a letter on a general matter, the subject of which she
did not recall She did the filing for sales She denied
that she did any filing for Dore She testified that the
office manager of Carlstadt, Mary Anne Fish, Dore, and
Local 641 Steward Kaminski were the only ones who
had keys to a filing cabinet in Dore's office She states
that she never attended any meetings pertaining to
union-management matters and stated that Mary Anne
Fish handled everything involved in the preparation of
"labor-law information"
I credit DeGrosa's detailed testimony There is no pro-
bative evidence that she was a confidential employee It
is unnecessary to consider the General Counsel's conten-
tion that Bedell's activity would still be protected even
were DeGrosa a confidential employee
I The Arbitration Award
Respondent placed in evidence an arbitration award
dated August 11, 1988, which denied Bedell's grievance
that Respondent did not have "just cause under the col-
YELLOW FREIGHT SYSTEMS 327
lective bargaining agreement for [his] discharge 9,1
General Counsel put in evidence the opening pages of
the transcript of the arbitration hearing, Respondent
placed in evidence the balance
Bedell's attorney at the arbitration hearing made it
clear at the outset that he was not there to litigate any of
the matters involved in Bedell's EEOC charge The issue
before me—whether Bedell was discriminated against be-
cause he assisted DeGrosa as to her EEOC charge and
also filed an EEOC charge on his own behalf—was not
presented to the arbitrator In these circumstances, defer-
ral is not warranted See Olin Corp, 268 NLRB 573
(1984)
Respondent requested that I defer to the credibility
resolutions of the arbitrator It would not be appropriate
to do so as the conflicting accounts presented to me for
resolution are necessarily enmeshed with the evidence
bearing on the EEOC matters To ignore the testimony
as to Bedell's aid to DeGrosa and other EEOC matters is
to ignore the whole case
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 Local 641 is a labor organization as defined in Sec-
tion 2(5) of the Act
3 As General Counsel established a prima facie case
that Bedell was discharged for discriminatory reasons, as
Respondent has not rebutted that showing, as DeGrosa
was not a confidential employee and as deferral to the
arbitral findings is unwarranted, I conclude that Re-
spondent, in discharging Bedell on February 3, 1988,
committed an unfair labor practice proscribed by Section
8(a)(1) and (3) of the Act
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it should be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act
The Respondent having discriminatorily discharged
Bedell, it must offer him reinstatement and make him
whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from the date of discharge to
date of a proper offer of reinstatement, less any net inter-
im earnings, as prescribed in F W Woolworth Co, 90
NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987)
On these findings of fact and conclusions of law and
on the entire record, LI issue the following recommend-
ed2
' Respondent's posthearmg motion that I take judicial notice of a New
Jersey Court decision confirming that award is granted, in order that the
full record in that proceeding may be considered That motion and Gen-
eral Counsel's statement of opposition are received as AU J Exh 4
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
ORDER
The Respondent, Yellow Freight Systems, Inc , Eliza-
beth, New Jersey, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Discharging, refusing to reinstate, or otherwise dis-
criminating against any employee for having engaged in
concerted activities, protected by the National Labor Re-
lations Act
(b) In any like or related manner coercing employees
in the exercise of the rights guaranteed them by Section
7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Lonnie Bedell, immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision
(b) Remove from its files any reference to his unlawful
discharge and notify him in writing that this has been
done and that the discharge will not be used against him
in any way
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its terminal in Elizabeth, New Jersey,
copies of the attached notice marked "Appendix "3
Copies of the notice, on forms !provided by the Regional
Director for Region 22, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately u'pon 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading Posted by Order of the Nation-
al 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"
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
WE WILL NOT discharge, refuse to reinstate, or other-
wise discriminate against any of you for engaging in con-
certed activities, protected by the National Labor Rela-
tions Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Lonnie Bedell, immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge, less any net interim earnings, plus interest
WE WILL remove from our files, and WE WILL notify
him that we have removed from our files any reference
to his discharge and that the discharge will not be used
against him in any way
YELLOW FREIGHT SYSTEMS