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ZIPP v. CATERPILLAR

July 18, 1994

GLENN A. ZIPP, REGIONAL DIRECTOR OF THE THIRTY-THIRD REGION OF THE NATIONAL LABOR RELATIONS BOARD, FOR AN ON BEHALF OF THE NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
CATERPILLAR, INC., RESPONDENT.



The opinion of the court was delivered by: Mihm, Chief Judge.

MEMORANDUM OPINION

On April 19, 1994, Petitioner Glenn A. Zipp, Regional Director of Region 33 of the National Labor Relations Board, filed a verified Second Amended Petition seeking temporary injunctive relief pursuant to § 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). Respondent Caterpillar, Inc. answered the Second Amended Petition on April 20, 1994. By leave of the Court, the International Union of United Automobile, Aerospace and Agricultural Implement Workers of America [UAW] and Local 974 of the UAW filed an amicus brief in support of the Second Amended Petition. Expedited discovery was conducted, and the Court set this case for an evidentiary hearing.

On May 23 through May 25, 1994, an evidentiary hearing was conducted. The parties were afforded a full opportunity to present and argue the evidence and the law. In consideration of the pleadings, the evidence, the arguments, and the submissions of the parties and the amicus, this Court denied Petitioner Zipp's Second Amended Petition for Injunction under § 10(j) of the National Labor Relations Act [Act]. On May 27, 1994, judgment was entered in favor of the Respondent and against the Petitioner.

                     Statement of the Facts
  Caterpillar is engaged in the manufacture, sale, and
distribution of large earthmoving equipment, diesel engines,
and related products and services. The UAW and Local 974 [the
Union] are the exclusive collective bargaining representatives
for Caterpillar's production and maintenance employees in a
multi-facility bargaining unit. The UAW represents
approximately 8,000 Caterpillar employees in the Peoria,
Illinois area through Local 974 and approximately 14,000
Caterpillar employees in other affiliated local unions in
Illinois, Colorado, Pennsylvania, and Tennessee.

On November 4, 1991, the collective bargaining agreement between Caterpillar and the Union expired. Since that date, Caterpillar and the Union have been engaged in an open, hostile, and high profile labor dispute concerning the terms and conditions of a successor collective bargaining agreement. In April 1992, Caterpillar and the Union reached an impasse in contract negotiations. Since then, the Union employees have gone on strike and returned to work on multiple occasions. The duration of these strikes has varied from days to months. During times when the UAW employees have not been on strike, they have worked without a contract under terms and conditions implemented by Caterpillar from its final proposed contract offer and certain revisions to that offer that have been subsequently made. This ongoing labor dispute has lasted for approximately three years and remains unresolved. As a result, the Union has filed numerous unfair labor practice charges against Caterpillar since the beginning of this labor dispute.

The unfair labor practice charges underlying this Petition involve George Boze, Jr., a UAW employee of Caterpillar who worked at Caterpillar's Mossville, Illinois facility. Boze was also the Union's Unit 7 Chairman and represented Mossville facility employees on the Local Union Executive Board. In addition, Boze was a member of the Union's Contract Action Team. The Contract Action Team is a committee of people who actively work to encourage other Union members to take a supportive role in working toward a contract.

On September 22, 1993, Boze testified at a National Labor Relations Board [Board] hearing regarding discipline he received in February and April 1993 for wearing a T-shirt bearing the words "Permanently Replace Fites" and other Union buttons. The word "Fites" refers to Caterpillar's chief executive officer. As a result of his participation in the administrative hearing, Boze was away from his work area at the Mossville facility from September 20, through November 1, 1993. On November 1, 1993, Boze returned to work. On November 10, 1993, Boze was indefinitely suspended. On December 2, 1993, Boze was formally discharged from employment at Caterpillar. The facts surrounding his suspension and discharge are vigorously disputed and at the core of three of the charges presently pending before the Board in the underlying case.

This Petition involves three charges filed by the Union with the Board on November 12, 1993, November 19, 1993, and February 4, 1994, against Caterpillar for allegedly engaging in unfair labor practices within the meaning of § 8(a)(1) and (3) of the Act. In the Second Amended Petition, the Petitioner asserts that there is a likelihood that the Regional Director will, in the underlying administrative proceeding in these cases, establish, inter alia, that:

  A. Charles Haddad, a Caterpillar foreman, on
  November 1, 1993 and continuing to and including
  November 10, 1993, harassed George Boze, Jr. and
  other employees serving as union officials
  through surveillance and monitoring of their
  actions.
  B. On November 1, through November 10, 1993,
  Haddad and Jim Slapinski (Caterpillar foreman and
  Boze's immediate supervisor), imposed desperate
  restrictions and a gag order on Boze, restricting
  his movement and talking to other employees in
  work areas because of union activity and
  sympathies.
  C. On November 4 or 5, 1993, Haddad told other
  employees that Boze was a troublemaker and
  directed them to stay away from him and other
  union officials.
  D. On November 4 or 5, 1993, Haddad coercively
  interrogated employees regarding their and other
  employee's union activity and told them that he
  was assigned to get rid of troublemakers and
  instigators.
  E. On November 10, 1993, Haddad made demeaning,
  provocative, and threatening remarks to Boze
  because he had engaged in union activity in order
  to discourage him and other employees from union
  activity.
  F. On October 19, through November 17, 1993,
  Haddad harassed employees suspected of being
  union supporters or engaged in union activity by
  surveiling and monitoring their actions.
  G. That on October 19, through November 17, 1993,
  Haddad threatened employees with discharge and
  unspecified reprisals because he suspected that
  they were union supporters and were engaging in
  union activity.
  H. On November 5, 1993, Haddad directed an
  employee to remove union insignia and union
  literature he had displayed on his toolbox and
  threatened to discharge him if he did not remove
  it.
  I. On November 5, 1993, Haddad threatened an
  employee with unspecified reprisals because he
  wore a black "UAW" arm band.
  J. On November 5, 1993, Haddad, in the context of
  discussing an employee's union activity, accused
  the employee of being engaged in industrial
  sabotage and suggested that he should transfer
  out of Haddad's work area because he could not be
  trusted.
  K. On January 31, 1994, and on February 7, 1994,
  Haddad threatened an employee with reprisals if
  he filed a grievance.
  L. On November 10, 1993, Caterpillar indefinitely
  suspended Boze.
  M. On December 2, 1993, Caterpillar discharged
  Boze.
  N. Caterpillar engaged in the above conduct
  because Boze assisted the union and engaged in
  concerted activities and to discourage employees
  from engaging in these activities.
  O. Caterpillar engaged in the conduct described
  above because Boze gave testimony to the Board in
  the form of affidavits and testified at an unfair
  practice hearing before the Board in an unrelated
  case.
  P. Caterpillar has been discriminating in regard
  to the hire or tenure or terms or conditions of
  employment of its employees, thereby discouraging
  membership in a labor organization, in violation
  of the Act.
  Q. Caterpillar has been discriminating against
  employees for giving testimony under the Act, in
  violation of the Act.
  R. Caterpillar has been interfering with,
  restraining, or coercing employees in the
  exercise of rights guaranteed by the Act.

The Petitioner, Glenn A. Zipp, Regional Director of Region 33 of the National Labor Relations Board, asserts that Caterpillar's unfair labor practices described above have and are continuing to irreparably harm employees of Caterpillar in the exercise of their rights guaranteed by the National Labor Relations Act and are continuing to irreparably chill employees in their utilization of, and participation in, Board processes during the ongoing labor dispute between Caterpillar and the Union. The Director asserts that Caterpillar's unfair labor practices have caused the following harm:

  A. On November 5, 1993, an employees removed
  union literature displayed on his toolbox after
  Caterpillar, by Haddad, threatened him with
  discharge.

  B. In November 1993, employees under the
  supervision of Haddad declined to wear T-shirts
  bearing a pro-union slogan out of fear of being
  fired.
  C. In early November 1993, an employee declined
  to file an unfair labor practice charge with the
  Board over a one-day suspension given to him by
  Haddad based upon the employee wearing a black
  arm band in support of the union, because the
  employee ...

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