Battery Bill, Inc.

BATTERY BILL, INC. 171 Battery Bill, Inc. and Chauffeurs, Teamsters & Helpers Union, Local 150, International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 20-CA- 14536 April 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On February 6, 1980, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Battery Bill, Inc., Sacramento, California, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph l(h): "(h) In any other manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. Counsel for the General Counsel excepted to the Administrative Law Judge's failure to issue a broad order. We find merit in the General Counsel's exception as Respondent's unlawful conduct, including interro- gations, creating the impression of surveillance, instructing employees to engage in surveillance, denying employees breaktime, as well as two dis- criminatory discharges, was extensive and reached most, if not all, of the entire employee complement. Cf. Hickmort Foods, Inc., 242 NLRB No. 177 (1979). Furthermore, the Administrative Law Judge inadvertently failed to conform the notice with the provision in his recommended Order that Respondent cease and desist from denying employees breaktime because of their membership in, and activities on behalf of or in support of, the Union. Accordingly, we shall correct the notice to conform to the rec- ommended Order in both respects noted herein. 249 NLRB No. 30 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Re- lations Act, as amended, and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: WE WILL NOT discharge or in any other manner discriminate against employees to dis- courage their membership in, and activities on behalf of or in support of, Chauffeurs, Team- sters & Helpers Union, Local 150, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT refuse to recognize and bar- gain collectively with Teamsters Local 150 as exclusive representative of our employees in the appropriate bargaining unit which is: All driver/salespersons, countermen and ware- housemen employed at Sacramento, California, excluding office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT interrogate employees con- cerning their union sentiments and activities. WE WILL NOT threaten employees with ces- sation of operations or loss of employment if they select the Union as their collective-bar- gaining representative. WE WILL NOT create the impression among employees that we are engaging in surveillance of their union and/or protected concerted ac- tivities. WE WILL NOT instruct employees to engage in surveillance of other employees' union and/ or protected concerted activities. WE WILL NOT deny employees breaktime because of membership in, and activities on behalf of or in support of, the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the National Labor Relations Act. WE WILL offer Donald Waybright reinstate- ment to his former position of employment or, if that job no longer exists, to a substantially equivalent position, without prejudice to se- niority or other rights and privileges previous- ly enjoyed, and make him whole, along with Richard Lee, for losses in pay resulting from BATTERY BILL, INC. 171i: 172 I)LCISIONS OF NATIONAL LABOR RELATIONS BOARD their each being discharged during April 1979, with interest. WE WILL recognize and, upon request, bar- gain with Teamsters Local 150 as exclusive bargaining representative of all employees in the appropriate unit described above with re- spect to wages, hours, and other terms and conditions of employment, and execute a writ- ten contract incorporating any agreement reached if requested by the Union. BATTERY BILL, INC. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Sacramento, California, on September 18, 1979, based on a complaint alleging that Battery Bill, Inc., herein called Respondent, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by discharging Donald Waybright and Richard Lee because of their membership in or activities on behalf of Chauffeurs, Teamsters & Helpers Union, Local 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, or because they engaged in other protected concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, while contempora- neously interrogating employees concerning their union sentiments and activities; threatening employees with ces- sation of business and loss of employment if they selected the Union as their collective-bargaining representative; creating the impression among the employees that it was engaging in surveillance of their union and/or protected concerted activities; instructing employees to engage in surveillance of other employees; denying an employee his breaktime because of membership in and activities on behalf of and/or support for the Union; and by continu- ously refusing to recognize and bargain collectively with the Union as the representative of all the employees in a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. Upon the entire record, my observation of witnesses, and consideration of post-hearing briefs, I make the fol- lowing: FINDINGS OF FACT AND CONCLUSIONS OF LAW William Wright founded this business and operated it for over 30 years.2 Following its sale in February 1978, 'The original due date for post-hearing briefs was October 22. On Oc- tober 18 an extension of time was granted to November 5 at the request of Respondent's counsel. Respondent's post-hearing brief was not in fact received until November 15. 1 have nevertheless reviewed the arguments made therein on grounds that in this particular adjudication no prejudice to any party arises from doing so. 'Respondent is a California corporation maintaining a place of business in Sacramento, California, where it engages in the wholesale and retail sale of automotive batteries and annually receives gross revenue in excess of $500,000, while purchasing and receiving goods and materials valued in excess of $5,000 which originated from sources outside California I therefore find that Respondent is an employer within the meaning of Sec. William Wright was retained as a technical advisor until at least April 19, 1979. 3 The general manager of this business since early 1978 has been William Wright's son, Douglas Wright, a former route salesman and driver. In January, following resignation of the warehouse superin- tendent, Douglas Wright informed an assemblage of em- ployees that Louis David Hemm, a former route sales- man, and John Miller would jointly assume the departing warehouse superintendent's duties. Miller left 2 weeks after this occasion and Hemm, who had relocated to a company office, settled in with his new function of or- dering merchandise and coordinating warehouse oper- ations. In this regard, he was instrumental in the hiring of employees and approval of time off from work. On March 27 driver/salesman Donald Waybright ap- peared at the office of Douglas Wright and, with Hemm present, was criticized about a company account on his route. This alarmed Waybright and the next day he spoke with counterman Richard Lee about the apparent need for representation of employees. Lee concurred with this, and Waybright proceeded to telephone the union office, out of which a meeting was arranged for April 2 with Business Representative Robert Crandall. On that date Waybright approached Hemm, as well as Lee and warehouseman Robert Coker, respecting attend- ance. All agreed to appear; however, only Waybright, Lee, and Coker showed up. They signed authorization cards and took additional ones for solicitation among other employees. On April 3 Waybright conversed in- conclusively with Hemm about the Union and also ob- tained a signed authorization card from warehouseman Steven Figaratto. At the end of that workday Hemm ap- proached Waybright and advised him that he was termi- nated. This led Waybright to speak with Douglas Wright, who confirmed the action, stating it was based on a failure to supply sales reports. On the morning of April 4, Crandall appeared at Re- spondent's premises and was met by William Wright, to whom he handed a proposed recognition agreement. Crandell testified that William Wright responded verbal- ly with doubt about whether a majority of Respondent's employees had authorized the Union to represent them, added there would never be a union at this firm, and profanely ordered Crandell away. Later in the morning William Wright approached Lee to ask if he favored the Union, and, when Lee diplomatically denied it, William Wright stated that advent of a union would cause Re- spondent to shut the business down and close up for good. A few minutes later William Wright approached Lee again while Douglas Wright was present, and, when Lee equivocated to the question of whether or not he wanted representation by the Union, William Wright said further that if he did he might as well "pack my bags and head on down the road" because the result of union- ization would be a shutting down of the business. Later that morning Douglas Wright approached Figaratto to inquire what he knew about the Union and whether he had signed an authorization card. Figaratto answered in the negative to both questions; however, later in the day 2(6) and (7) of the Act, and also that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. 3AI dates and named months are in 1979 unless stated otherwise. HATTERY BILL, INC. 173 William Wright approached him and pointedly rein- quired, adding that eventually Respondent would find out what was truly taking place and "fire people" re- garding this. On or about April 4 William Wright also approached newly hired warehouseman Ignacio Ranjo and, with Hemm present, inquired about Ranjo's knowl- edge of union activities and his sentiments on the ques- tion. Ranjo, who in fact signed an authorization card later in May, denied any involvement as Hemm joined the conversation arguing against having a union in this type of enterprise. Figaratto testified that, during the afternoon of April 5, Douglas Wright approached him with the same inquires, particularly as to whether Lee was an employee organizer. Douglas Wright assertedly added, in the context of Figaratto's denials of knowledge on all points, that as a small organization Respondent could not afford to have a union, yet would soon learn who was advocating it and "eventually fire them." On April 5 and 6 Douglas Wright approached Robert Coker and Richard Lee, respectively, inquiring of the former about any contacts with the Union and advising the latter that his father would not stay in business if the Union came in. On April 12 Douglas Wright asked Fi- garatto to determine what was being said between Lee and Coker in a coversation underway nearby with re- spect to whether or not the subject was unionism. Figar- atto did so and, when pressed about his experience later in the day, responded negatively to Douglas Wright's question as to whether there was "anything that was un- usual" being said. On April 17 Respondent received the petition in Case 20-RC-14796, in which the Union sought to represent all driver/salespersons, countermen, and warehousemen em- ployed at the Sacramento facility. At midmorning on April 17, Lee made his customary purchase from a mobile snack service outside the building. He testified that as he was doing so on this occasion, Douglas Wright approached and for the first time in 3 months of employment ordered him back inside. At quitting time that afternoon Douglas Wright called Lee into his office and, with Hemm present, advised that he was being dis- charged for making too many mistakes. The supervisory and consequent agency status of both William Wright and Hemm is at issue in this case. As to William Wright it is obvious that the term "technical ad- visor" is but a euphemism to cover his extensive contin- ued involvement in the management of this business. He effectively participated in the employment of Ranjo, and both Figaratto and Lee credibly testified that Douglas Wright had advised them to unhesitatingly follow any order given by William Wright. The facts of the case make clear that since February Hemm has possessed suf- ficient authority to constitute him Respondent's supervi- sor and agent. His originally shared assignment of man- aging warehouse operations was automatically enlarged upon by the departure of Miller, particularly inasmuch as Respondent made no effort to redistribute Miller's re- sponsibilities. Douglas Wright specifically delegated re- sponsibility for approving sick leave and authorizing per- sonal time off to Hemm. He participated in applicant in- terviews and consideration of requested wage raises and, in both regards, made effective recommendations to Douglas Wright. From this I find that at all relevant times both William Wright and Hemm possessed several of the powers set forth in Section 2(11) of the Act, and are therefore supervisors and agents of Respondent for purposes of imputing knowledge concerning union activ- ities among employees, and individuals whose utterances would bind Respondent. The discharges of both Waybright and Lee were ar- rantly pretextual. Douglas Wright's explanation that his dissatisfaction toward Waybright and had mounted around mid-March because of paperwork errors and rela- tions with customers is unpersuasive. I am satisfied that in this, as well as in regard to his denials of having threatened and otherwise verbally coerced employees, he is untruthful. As to Waybright, it must further be noted that no warning of these alleged deficiencies was ever expressed to him, and the timing of his discharge, after several months employment and only scant days after Hemm learned of his key involvement with the Union, requires the inference that Respondent recognized him as a principal instigator and, in keeping with its incipient hostility towards such a person, chose to discharge him for such activities. The treatment of Lee has much the same characteristics, particularly as to claimed dissatis- faction extending back to February. The unsupported reasons advanced by Respondent as to Lee's supposed belligerence and engagement in mild horseplay at work are utterly unconvincing when weighed against con- spicuous concern with his involvement in the organizing drive and the timing of his discharge on the very day a representation petition was received. Under these cir- cumstances, and again noting general animus displayed by both Wrights, I infer that the assigned reasons were pretextual, and that Lee's identification as a strong ad- herent of the Union was the actual basis for his termina- tion. Relatedly, I find that Douglas Wright's action of in- terfering with Lee's morning workbreak on April 17 was similarly unlawful, taking into account its timing and the credible testimony of Lee that it was unprecedented. Both William and Douglas Wright denied the action- able utterances that were attributed to them by the sev- eral witnesses of the General Counsel. I am impressed with the apparent sincerity and truthfulness of these rank-and-file witnesses, and I am fully satisfied that their recollection of being questioned, threatened, and cleverly manipulated in the interests of unlawful resistance to em- ployee rights is accurate. The testimony of these wit- nesses adequately supports various subdivisions of the complaint's main paragraph 6. The stipulated unit contained seven employees on April 4, including Waybright, who was discharged the day before. This calculation excludes Hemm because he is a supervisor. Valid authorization cards running to the Union were in existence at that point in time from Way- bright, Lee, Coker, and Figaratto. I find from this that the Union represented a majority of employees in an ap- propriate bargaining unit on the day after Respondent commenced a campaign of serious, pervasive unfair labor practices, and that this conduct has so precluded the like- lihood of holding a fair election that it warrants issuance of a bargaining order. N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969): Trading Port. Inc., 219 NLRIt HAIERY BILL, INC. 173 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 298 (1975); Jim Baker Trucking Company, 241 NLRB No. 14 (1979). Accordingly, I render conclusions of law that Re- spondent, by interrogating employees concerning union sentiments and activities, by threatening employees with cessation of operations and loss of employment if they select the Union as their collective-bargaining representa- tive, by creating the impression among employees that it was engaging in surveillance of their union and/or pro- tected concerted activities, by instructing employees to engage in surveillance of other employees' union and/or protected concerted activities, by denying employees breaktime because of membership in, and activities on behalf or in support of, the Union, by discharging Donald Waybright and Richard Lee because of their membership in, and activities on behalf or in support of, the Union, and by refusing since April 3 to recognize and bargain collectively with the Union, has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act. Disposition On December 19, the General Counsel filed a motion to reopen the record and to consolidate this matter with the newly issued complaint in Case 20-CA-14964. In support thereof it was stated that both cases were part of a single overall controversy, and that consolidation would effectuate the purposes of the Act and avoid un- necessary cost or delay. I issued an Order To Show Cause on December 20, to which Respondent contructi- vely filed its opposition to the motion (which did not, from an attached proof of service by mail, appear to have been served on the (General Counsel), arguing re- moteness in time as to events, lack of similarity as to par- ties, and that a general sort of prejudice would flow from consolidation. The General Counsel augmented the reasons first given in support of its motion with an exten- sive written response to the Order To Show Cause filed on January 15, 1980. I am impressed primarily by the passage of time be- tween the concentrated events of April and the alleged discriminatory discharge of Figaratto nearly 6 months later. It is implicit in the General Counsel's argument that any claimed explanation for this discharge would be pretextual, thus leading to unknown variables and ave- nues of proof, both pro and con, on the issue, and readily suggesting consideration of the employment dynamics experienced by both Coker and Ranjo after they had become card signers but before they each voluntarily quit. Allegations of the new complaint that touch Sec- tion 8(a)(4) of the Act, while duplicative for purposes of remedy with those under Section 8(a)(3), call into play unique and subtle principles through which inferences may be drawn with respect to that lesser-invoked provi- sion of the Act. While I here resolve the issue of Hemm's supervisory status, it is also true that the same passage of time to which I allude above could well in- volve fresh appraisal of his role completely beyond that made on the basis of his original short term in the posi- tion. Accordingly, I deny the General Counsel's motion to reopen the record and to consolidate cases. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Battery Bill, Inc., Sacramento, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against employees to discourage their membership in, and activities on behalf or in support of, Chauffeurs, Teamsters & Helpers Union, Local 150, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit described below: All driver/salespersons, countermen, and warehou- semen employed at Respondent's Sacramento, Cali- fornia, facility, excluding office clerical employees, guards and supervisors as defined in the Act. (c) Interrogating employees concerning their union sentiments and activities. (d) Threatening employees with cessation of oper- ations or loss of employment if they select the Union as their collective-bargaining representative. (e) Creating the impression among employees that it was engaging in surveillance of their union and/or pro- tected concerted activities. (f) Instructing employees to engage in surveillance of other employees' union and/or protected concerted ac- tivities. (g) Denying employees breaktime because of member- ship in, and activities on behalf or in support of, the Union. (h) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Donald Waybright reinstatement to his former position or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges, and make him whole, along with Richard Lee, in the manner provided in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977),5 for any loss of earnings incurred as a result of their being dis- charged. 6 4 1n the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 5See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 'On May 4 Lee declined an unconditional offer of reinstatement, and consequently this phase of the customary remedy does not run to him. I shall not recommend a remedial interest rate of 9 percent on backpay as supplementally requested by the General Counsel because it is inappro- priate to do so in the light of the recency and thoroughness in and by Continued BATTERY BILL, INC. 175 (b) Recognize and, upon request. bargain collectively and in good faith with the Union as exclusive representa- tive of employees in the appropriate bargaining unit, with respect to wages, hours, and other terms and condi- tions of employment, and execute a written contract in- corporating any agreement reached if requested by the Union. (c) Post at its Sacramento, California, place of business copies of the attached notice marked "Appendix."7 which the Board examined this subject and chose the "adjusted prime rate" principle of Florida Steel. See Hansen Cakes. Inc., 242 NLRB No. 74 (1979); cf. Equal Employment Opportunity Commission v. Pacific Press Publishing Association, 21 FEP Cases 848 (N.D Cal,, 1979) 7in the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Copies of this notice, on forms to be provided by the Re- gional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"