Teamsters Local 375 (Consolidated Freightways), 212 (1995)

Local 375, International Brotherhood of Teamsters,

AFL-CIO (Consolidated Freightways Corporation) and Roy W. Gregory. Case 3-CB-6298

April 28, 1995

DECISION AND ORDER

BY MEMBERS STEPHENS, COHEN, AND TRUESDALE

On November 4, 1994, Administrative Law Judge George F. McInerny issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. The General Counsel filed an answering brief and an amended answering brief to the Respondent's exceptions, and the Respondent filed a reply brief to the General Counsel's answering brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions and to adopt the recommended Order as modified.2

The judge found that the Respondent violated Section 8(b)(1)(A) of the Act by removing Charging Party Gregory from his position as union steward in part because he had filed unfair labor practice charges with the Board and threatened to file further charges if his demands were not met. We agree with the judge's finding of a violation, but for the following reasons.

In December 1992, Gregory, as the assistant shop steward, filed a number of grievances involving the application of the overtime seniority provisions in the contract on behalf of himself and a number of other employees. The Respondent refused to process these grievances, indicating that it believed that they had no merit. On January 25, 1993,3 Gregory filed two charges with the Board, one against the Respondent

and the other against Consolidated Freightways Corporation (the Employer).

On April 13,4 Gregory and another employee, Mueller, each prepared grievances concerning the same overtime seniority issue that had been the subject of the earlier grievances. The Respondent's vice president, Campanella, and Business Agent Urbino told Mueller that they would not accept the grievances. Gregory then faxed the grievances to Campanella and Urbino, with a message stating, inter alia, ''You will accept these 2 grievance forms. You will present this to the New York State Freight Grievances Committee. . . . If this is not handled properly we will have no recourse but to go to the NLRB.''

After receiving this fax on April 13, Campanella told Gregory by telephone that he was removing him as union steward. In a followup letter to Gregory also dated April 13, Campanella stated ''you are unable to conduct yourself as a responsible person as a Union Steward. Local 375 does not need a representative that fails or refuses to discuss matters pertaining to contract violations.'' Campanella reiterated his belief that the grievances were without merit, and accused Gregory of having a ''movement of yourself to continue the push'' for the grievances. Stating that a steward's job was to investigate alleged grievances and to contact the business agent accordingly, and that Gregory could not put his ''moral thoughts'' above the contract, Campanella reiterated that he was removing Gregory as steward.

In a letter dated April 13, the Acting Regional Director for Region 3 dismissed Gregory's charges against the Respondent, and determined that his charges against the Employer should proceed through the arbitration process.

On April 13 or 14, employee Drennan asked Campanella why Gregory had been removed as steward, and Campanella told him that it was because of the faxing of grievances, Gregory's failure to sit down and discuss his grievances, and his dealings with the Labor Board. The following day, Drennan asked Urbino the same question, and Urbino gave much the same answer, stating that it was because Gregory was ''unmanageable,'' he had faxed the grievances and would not sit down and talk about them, and his dealings with the Labor Board. Further, at a union meeting on May 2, Drennan again asked why Gregory was removed, and Campanella again stated that it was because of faxing grievances, not sitting down and discussing them, and his dealings with the Government. Urbino then stated that Gregory was nothing but problems for the Respondent, making the treasury ''very fragile with his dealings with the NLRB,'' and that Campanella's time was too valuable to be wasted

1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear 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.

The judge erroneously stated that Charging Party Gregory was first employed by the Respondent in April 1995 and became a full-time employee with seniority dating from June 14, 1997. The correct dates are April 1975 and June 14, 1977, respectively. Also, in the last paragraph of sec. III of his decision, the judge inadvertently referred to the removal of Gregory from the steward position on April 3, 1993, rather than on April 13, 1993.

2 The judge inadvertently omitted the word ''not'' from the paragraph in the notice to employees that, as currently worded, begins ''WE WILL remove officers or agents of this Union . . . .'' We shall modify the notice to employees accordingly.

3 All dates are in 1993 unless otherwise indicated.

4 On March 2, Gregory was designated as steward because the previous steward retired. Gregory was the only employee to express any interest in the position.

going to different hearings. Campanella then read at least part of the Acting Regional Director's April 13 letter, and commented that this was costing the Local money ''with lawyers and arbitration.''

This case presents a dual-motive situation, and thus a Wright Line5 analysis is appropriate.6 We find that the General Counsel has established a prima facie case that Gregory's removal was unlawful, given the credited testimony that the Respondent stated that one of the reasons for removing him as steward was his dealings with the Board.7 Thus, the burden shifts to the Respondent to show that it would have taken the same action even in the absence of the protected conduct. The Respondent cannot carry this burden merely by showing that it also had a legitimate reason for the action, but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct.8

We find that the Respondent has not shown by a preponderance of the evidence that it would have removed Gregory as steward even in the absence of his protected conduct. In this regard, we note that each time the Respondent was asked why it removed Gregory, his dealings with the Board was one of the three reasons cited. Further, at the May 2 union meeting, when asked why Gregory was removed, Urbino said that Gregory was making the Local's treasury ''very fragile with his dealings with the NLRB'' and that Campanella's time was too valuable to be wasted going to different hearings, and Campanella read part of the Acting Regional Director's April 13 letter and stated that this was costing the Local money ''with lawyers and arbitration.'' Further, in Gregory's April 13 fax to the Respondent that precipitated Campanella's decision to remove him, Gregory had not only insisted that the grievances be accepted, but also threatened to file further charges with the Board if his demands were not met. Finally, although Campanella's April 13 letter to Gregory did not cite his filing charges with the Board as a reason for his removal, we find that this letter alone does not show by a preponderance of the evidence that the Respondent would have removed Gregory in the absence of his protected conduct. In this regard, we note that in all subsequent discussions about its reasons for removing Gregory, the Respondent included Gregory's filing charges with the Board, and, indeed, even expanded on this factor as a reason at the May 2 union meeting, noting its det-

rimental effect on the Respondent with regard to money and time.

Thus, we conclude that the Respondent has failed to carry its burden under Wright Line of persuading by a preponderance of the evidence that it would have removed Gregory from his position as steward even in the absence of his protected conduct, and that the Respondent therefore has violated Section 8(b)(1)(A) of the Act by removing Gregory as steward.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local 375, International Brotherhood of Teamsters, AFL-CIO, Buffalo, New York, its officers, agents, and representatives, shall take the action set forth in the Order as modified except that the attached notice is substibuted for that of the administrative law judge.

APPENDIX

NOTICE TO MEMBERS

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 ordered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected concerted activities.

We hereby notify our members that WE WILL NOT remove officers or agents of this Union from their positions because they have filed charges with the National Labor Relations Board.

WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL reinstate Roy W. Gregory to his position...