Airborne Freight Corporation, 1376 (1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Airborne Freight Corporation and Truck Drivers Union Local No. 407 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Alvin Gordy.

Cases 8-CA-13784 and 8-CA-14335

September 21, 1982 DECISION AND ORDER

BY CHAIRMAN VAN DE WATER AND

MEMBERS FANNING AND ZIMMERMAN

On August 5, 1981, Administrative Law Judge Arline Pacht issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief and a brief in support of the Decision.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order.

As more fully set forth in the attached Decision, the Administrative Law Judge found, inter alia, that Respondent, on numerous occasions, hired individuals solely because it believed they were opposed to the Union. One of these individuals,

Dianne Popadich, was solicited by Karen Thiel, wife of Respondent's regional manager. Mrs. Thiel approached several women at a racquetball club.

She asked if any were interested in working part time for Respondent because 'the Union was trying to come in and they wanted somebody partRespondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products,

Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing her findings. We also find totally without merit Respondent's allegations of bias and prejudice on the part of the Administrative Law Judge. Upon our full consideration of the record and the Administrative Law Judge's Decision, we perceive no evidence that the Administrative Law Judge prejudged the case, made prejudicial rulings, or demonstrated bias against Respondent in her analysis or discussion of the evidence. Additionally, we find that Respondent was not misled by statements made by the Administrative Law Judge relative to Respondent's request to introduce evidence regarding its practice of filling vacancies at other locations. While the Administrative Law Judge indicated that she felt such evidence would be of little probative value, she also said that, if Respondent felt that the evidence was necessary to its defense, it was not foreclosed from introducing it.

Finally, we do not agree with Respondent's contention that because the Administrative Law Judge erroneously wrote Detroit, Michigan, as the place of the hearing, rather than Cleveland, Ohio (aharmless oversight which we hereby correct), that someone other than the Administrative Law Judge wrote the Decision.

263 NLRB No. 181 time to vote against the Union.' Popadich indicated that she was interested and shortly thereafter Mr. Thiel contacted her and, although she had no previous experience, hired her the same day.

It is undisputed that Mrs. Thiel made the remark attributed to her. Equally as clear is that 'they' to which she was referring is the management of Respondent, of whom her husband was the highest ranking area official. Her statement was ratified when 'they,' in the person of her husband, promptly hired the inexperienced Popadich.

We also stress, as found by the Administrative Law Judge, that this was just one example of an overall scheme engaged in by Respondent to pack the unit with employees who opposed the Union.

Indeed, as correctly reasoned by the Administrative Law Judge, this incident was the 'most egregious example of Respondent's unlawful purpose.' To conclude, as does our dissenting colleague, that Mr. Thiel did not tell his wife to solicit applications, let alone under the terms that 'they' wanted somebody to vote against the Union, is to shut one's eyes to the realities of the case and this we are unwilling to do.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Airborne Freight Corporation, Cleveland, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

MEMBER ZIMMERMAN, dissenting in part:

Contrary to my colleagues, I find that Respondent did not violate Section 8(a)(1) of the Act when Karen Thiel, wife of Respondent's regional manager, approached a group of players at a racquetball court and asked whether any of them were interested in working as part-time clerks for Respondent. Mrs. Thiel advised the racquetball players that the Union was attempting to oiganize Respondent's employees and that Respondent 'wanted somebody part-time to vote against the Union.' One person, Dianne Popadich, expressed interest in employment with Respondent. Subsequently, Regional Manager Thiel contacted Popadich and offered her a job, which she accepted.

Mrs. Thiel was not employed in any capacity by Respondent. She had no actual authority to act or speak for Respondent. Respondent did not hold out Mrs. Thiel to the public as one of Respondent's representatives. Mrs. Thiel's only 'connection' to Respondent was that she was married to one of its 1376

AIRBORNE FREIGHT CORPORATION regional managers. And yet it is on that basis, and that basis alone, that the Administrative Law Judge found Mrs. Thiel to be an agent of Respondent, and Respondent to be liable for Mrs. Thiel's indiscretions and improprieties. Thus, according to the Administrative Law Judge, 'Popadich had good reason to believe that Karen Thiel was acting pursuant to Respondent's authority since she was the wife of Respondent's regional manager.' I find this to be, without more, a wholly insufficient basis in itself upon which to hold Respondent liable for Mrs. Thiel's acts,2 and I find the cases relied upon by the Administrative Law Judge in support of her finding of Mrs. Thiel's agency status to be inapposite.3

Accordingly, I find that Respondent is not 2aFairland Market, Inc.. d/b/a Foodland,233 NLRB 708, 713 (1977);

Kurt A. Perschke. a sole proprietorshipd/b/a Perschke Hay & Grain, 222

NLRB 60 (1976); Boston Cab Company. Inc. d McCann's Taxi, Inc., 212

NLRB 560. 565 (1974); F. M. Broadcasting Corp., 211 NLRB 560, 565 (1974); Radco Enterprises Inc., 189 NLRB 278, 279 (1971). See also Firestone Steel Products Company. a Division of Firestone Tire and Rubber Company, 235 NLRB 548, 550 (1978).

3 In Aircraft Plating Company, Inc., 213 NLRB 664 (1974), the Board held an employer accountable for interrogation and threats made to other employees by an employee who was the son of the president and half owner, nephew of the vice president and part owner, and cousin of the plant superintendent of the closely held, single-plant employer, and whose relationship to these high management officials was well known to and frequently observed by the other employees. Moreover, the offending employee in question was himself the employer's safety director, in charge of ensuring the compliance by other employees with OSHA directives, was paid a salary, and did not punch a timeclock. Little wonder, then, that the Board in Aircraft Plating found that:

While family relationship is but one of the factors to be considered in determining the employees' perceptions of Leslie's status, that relationship, when viewed in the context of the other factors, noted above, is sufficient to identify him with management.

There is, obviously, little resemblance between the overwhelming factual support for the Board's finding that the employee in Aircraft Plating had apparent authority to speak and act for the employer, and the decidedly meager support in the instant case for my colleagues' finding that nonemployee Mrs. Thiel was an agent of Respondent.

In American Door Company, Inc., 181 NLRB 37 (1970), the other case relied upon by the Administrative Law Judge in this context, the Board held an employer accountable for coercive statements made to other employees by an employee who was the son of the president and brother of the secretary-treasurer of the small (2-plant) 35-employee family-owned and family-operated employer, and whose relationship to these two principal operating officers was well known to the other employees. The employee in question did not punch a timeclock and was paid a salary which gave him an income almost three times higher than the rest of the employees. Moreover, the employee in question was actually present and stood silently by, aligned with management, while his father and brother called employees into a management office and interrogated them, solicited their grievances. and threatened them with loss of pay and benefits and with plant closure if the union succeeded in organizing the employees. Subsequently, the employee in question started a fist fight with a prounion employee, told that employee to leave the plant, and was then assisted by his father, the employer's president, in evicting the prounion employee from the plant As in Aircraft Plating,supra,it comes as no surprise that the Board in American Door upheld the Administrative Law Judge's finding that:

Although the family relationship is but one of the factors to be considered, this relationship, when viewed in the context of the other differences noted between Stooks and the employees, is sufficient to identify him with management. [181 NLRB at 43.] Once again,...