Bilyeu Motor Corp.

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be construed to require or permit Respondent to revoke , withdraw, alter, or modify any wage increase or other economic benefit previously granted the employees. WE WILL NOT promise employees , tacitly or explicitly, benefits as an induce- ment to renounce the Union as their exclusive bargaining representative. WE WILL NOT conduct or require polls of our employees , or assist or par- ticipate in any activities designed to determine the desires of said employees with regard to representation by the Union as bargaining agent or insist upon or require such polls as a prerequisite to further bargaining with the Union. WE WILL NOT engage in or create the impression of engaging in surveillance of the union activities of our employees. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to join or assist said Union or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , and to engage in any other concerted activities for the purpose of mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agree- ment in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL, upon request, bargain collectively with said Union as the exclusive collective-bargaining representative of all the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees, including truck drivers employed by the Employer at its Denver, Colorado plant ; excluding office clerical employees, salesmen, driver salesmen , guards, professional employees, and supervisors as defined in the Act. SHURTENDA STEAKS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 609 Railway Exchange Building, 17th and Champa Streets, Denver, Colorado 80202, Telephone 688-5850. Bilyeu Motor Corp. and General Drivers, Salesdrivers, Ware- housemen & Helpers Local Union 245, International Brother- hood` of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 17-CA-2844. November 15, 1966 DECISION AND ORDER On August 2, 1966, Trial Examiner John H. Eadie issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief, and the General Counsel filed excep- tions and a supporting brief. 161 NLRB No. 93. BILYEU MOTOR CORP. 983 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modifications : We are of the opinion, in agreement with the General Counsel, that the policies of the Act will best be effectuated if the notice which Respondent is required to sign and post, and which informs the employees of their rights, how those rights were violated, and by what process they have been upheld, is expressed in simple and readily understandable language, as set forth in the attached Appen- dix. Furthermore, since the record discloses that Bill Bilyeu, Respond- ent's president and general manager, is in fact the sole owner of Bilyeu Motor Corp. and the only person to decide upon and effectu- ate company policies, and was in fact the person responsible for the unlawful discharge of employee Fetterhoff, we think that the effect of his unfair labor practice conduct will best be dispelled if he is required, as requested by the General Counsel, to sign the notice as president and sole owner of Respondent. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Substitute for the words "Intermediate Report" in paragraph 2(a) the words "Trial Examiner's Decision." [2. In paragraph 2(d) substitute for the phrase "after being duly signed by the Respondent or its authorized representative" the phrase "after being duly signed by the Respondent, by Bill Bilyeu as President and Owner." [3. Substitute for the Appendix set forth in the Trial Examiner's Decision, the attached Appendix.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we violated the law and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL NOT question you in any way over the Union. WE WILL NOT threaten you in any way over the Union. WE WILL NOT discourage union, activity or membership in General Drivers, Salesdrivers, Warehousemen & Helpers Local Union 245, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organi- zation, by discriminating against you if you choose to engage in union activity or join General Drivers, Salesdrivers, Warehouse- men & Helpers Local Union 245, or any other union. WE WILL NOT discriminate against any employee for engaging in union activity. Since the Board found that we did so when we fired James Fetterhoff WE WILL offer to James Fetterhoff full reinstatement to his old job, and WE WILL pay him for any loss that he suffered because we fired him. If he is presently in the Armed Forces of the United States, WE WILL notify him of his right to full reinstatement upon application after discharge from the Armed Forces. WE WILL respect the rights of our employees to self-organiza- tion, to form, join, or assist any labor organization, or to bargain collectively in respect to terms or conditions or employment through said Union, or any representative of their own choosing, or to refrain from such activity, and WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of these rights, except insofar as these rights could be affected by any contract with a labor organization, if validly made in accordance with the National Labor Relations Act, whereby membership therein is a condition of employment after the 30th day following the date of such contract or the beginning of such employment, whichever is later. You and all our employees are free to become members of any labor organization, or to refrain from doing so. BILYEU MOTOR CORP., Employer. Dated-- --------------- By-------------------------------- -- Bill Bilyeu President and Owner This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or com- pliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5282. BILYEU MOTOR CORP. TRIAL EXAMINER'S DECISION 985 STATEMENT OF THE CASE This proceeding was held before Trial Examiner John H. Eadie in Springfield, Missouri, on May 5, 1966, on the complaint of the General Counsel and the answer of Bilyeu Motor Corp., herein called the Respondent.' The issue litigated was whether the Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Florida corporation which is licensed to do business in the State of Missouri . It has its principal place of business at Springfield , Missouri, where it operates a trucking firm furnishing interstate transportation service. The Respondent annually derives gross revenue in excess of $50 ,000 for interstate trans- portation services to customers. The complaint alleges, the Respondent's answer admits, and I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Salesdrivers, Warehousemen & Helpers Local Union 245, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES James Fetterhoff was hired by the Respondent on May 5, 1965. At all times material herein, he worked as a mechanic on "Thermo-King" refrigeration. On December 16, 1965, Household Finance Corporation obtained a judgment against Fetterhoff in the amount of $891 .89 in the Magistrate Court of Greene County, Missouri. The suit involved a note dated December 17, 1956, and made by Fetterhoff and his former wife. On January 3, 1966, a "summons to garnishee" was served on Tom Mayberry, the Respondent's bookkeeper. Shortly thereafter Bill Bilyeu , the Respondent's president and general manager, spoke to Fetterhoff about the garnishment. In substance, Bilyeu told him that the Respondent did not "go along with things like this"; and that if he did not get it "straightened out," he would be forced to terminate his employment. Fetterhoff replied that the debt was contracted by a former wife, that his name was not on the note, and that he would quit his employment before he would pay for it. Bilyeu told him "if this is true the divorce papers would be dated prior to [the note] . go see our Company attorneys . you get it straightened out and it [will] be forgotten." At a later date Bilyeu asked Fetterhoff if he had the garnish- ment "straightened out." Fetterhoff replied that he was "working on it." As a result of negotiations between Fetterhoff and Household Finance, its attorney by letter dated January 28, 1966, requested the clerk of the Magistrate Court to release the garnishment. On January 31, 1966, the sheriff of Greene County served notice on the Respondent that it was released from further liability as garnishee. About the same time Mayberry told Fetterhoff that the garnishment would be released after the Respondent deducted $27.35, or 10 percent of his wages. The Respondent deducted this amount from Fetterhoff's wages and sent it to the Magistrate Court. A receipt, dated February 3, 1966, was mailed by the Magistrate Court to the Respondent. On January 31, Fetterhoff was called to the shop by Neal Gott, the Respondent's maintenance foreman, in order to fix a trailer. While at work he had a conversation about the Union with a truckdriver of another company. As a result of this con- versation, on February 3 after work Fetterhoff went to the Union's office where he spoke to Bob Kirk, an assistant business representative of the Union. They dis- cussed organization of the Respondent's employees. Kirk told him that he should solicit the other mechanics to sign authorization cards. i The charge was filed on February 8, 1960 The complaint issued on March 16. 1966 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 4, during work Fetterhoff talked to the mechanics about the Union, "just feeling them out." About 9:30 a.m. on February 5, the employees took a "coffee break." While employees Donald Oliver, Harry Blevins, Robert Mac Rear, and Leo Larson were sitting at a table in the shop, Fetterhoff gave each of them a union card. As they were discussing the cards Gott and Walter Doyle , the Respond- ent's dispatcher, joined the group. Oliver had a card in his hand at the time. Gott took the card and asked Oliver where he got it. Oliver "jokingly" replied that he had found it on Gott's desk. Gott asked the employees who owned the cards. Fetterhoff answered that they were his. Gott told him that he "could get fired for passing out union cards." 2 Gott and Doyle then left the plant in the latter's car. I find that the above interrogation and threat of reprisal by Gott violated Section 8(a)(1) of the Act. About 1 hour and 10 minutes after the above incident Bilyeu came to Fetterhoff's, place of work and discharged him. He told Fetterhoff to pack his tools and "get the hell out of here." As Fetterhoff was packing his tools, Gott brought him his final paycheck. Fetterhoff accused Gott of causing his discharge. Gott denied this. Fetter- hoff did not have any conversation with either Bilyeu or Gott at the time of his discharge other than the above. Fetterhoff testified that at the time of his discharge he was working on a Thermo- King that was on the top and front of a trailer which was parked in a stall "about middleways in the shop"; the doors entering into the offices were at the south end of the shop; between his trailer and the office entrance there were three tractors but no trailers; from his place of work he could see the office entrance; if a trailer had been parked between him and the south end of the shop, he would not have been able to see the office entrance; Gott and Doyle returned to the shop about 1 hour after the coffeebreak; Doyle went into the dispatcher's office and Gott entered the door "leading to Mr. Bilyeu's office"; and Bilyeu discharged him about 10 minutes later. Oliver testified that after the coffeebreak he returned to work fixing brakes "under" a trailer which was parked in "about the fourth stall from the office"; Fetterhoff worked on the front end of a trailer in the next or fifth stall from the office entrance; and "possibly" there were other vehicles between his trailer and the office. Blevins testified that he was working on a tractor in the second stall; he did not recall any vehicle in the first stall; Fetterhoff and Oliver were working on the same trailer which was parked in the third stall; and there was another trailer in the fourth stall. Concerning work in the stalls on February 5, Bilyeu testified , "There was a, trailer in the first stall, there was two tractors in the second stall, and two trailers in the third and fourth stall . . . . That was between 8:30 and 9 o'clock Don Oliver was working on the brakes of that trailer in the - first stall. Harry Blevins was greasing the trucks in the second stall . . . and Fetterhoff was working on the front of a trailer in Stall 3 ." Bilyeu further testified to the effect that he tried unsuccessfully to locate Gott about 8:30 and again after the coffeebreak during the morning of February 5, in order to have him discharge Fetterhoff, that he did not see Gott until after he (Bilyeu) had discharged Fetterhoff, and that he did not know about the union cards at the time of discharge. Gott testified that after the coffeebreak he was absent from the plant "about an hour and a half, hour forty-five minutes"; he immediately went to the office where Mayberry informed him that Bilyeu had discharged Fetterhoff; and he did not tell Bilyeu about the union cards until later that same day . Doyle testified that he and Gott left the shop about 9:30 a.m. and returned after "about an hour and a half, something like that." 2 The above conversation is based upon credited testimony of Fetterhoff, Oliver, and Blevins When questioned as to whether he had made the above statement to Fetterhoff, Gott testified, "I cautiously mentioned something like that, but we was just joking and going on like we always do around the place." Doyle testified that be did not hear the remark attributed to Gott. Rear and Larson were called as witnesses by the Respondent. Rear testified to the effect that he did not see Gott during the coffeebreak. Larson testified that he saw Gott "walk by one time" but that be did not recall him "saying anything " BILYEU MOTOR CORP. 987 Bilyeu was the only witness who testified that there was a trailer in the first stall. However, in this connection he testified, "There was a trailer in the first stall, . The reason I know this is when I went out the first time [about 8:30 a.m.] looking for Neale, Don Oliver was working on the brakes of that first trailer." It is clear from the testimony of Oliver and Blevins that the former was not working on a trailer in the first stall between 10:30 and 11 a.m., but was working on one located either in the third or fourth stall. Oliver was not questioned as to where he was working at 8:30 a.m. Oliver testified that after the coffeebreak he was working in "about" the fourth stall and that Fetterhoff was in the "next" or fifth stall. That Oliver was mistaken is shown by the testimony of Bilyeu to the effect that the fifth stall was used for storage of material such as "crap, meat hooks and stuff like that." Oliver, Blevins, and Bilyeu were in agreement that two trailers were parked at the end of the line. Contrary to Oliver, Bilyeu testified that Fetterhoff was working on the next to the last trailer on the line or in the third stall. This agrees with Blevins ' testimony and does not conflict with that of Fetterhoff . For the above reasons I credit the testi- mony of Fetterhoff and Blevins in this connection and find that Fetterhoff's view of the office entrance was not blocked by a trailer at the time in question. Bilyeu testified that the discharge took place at "10 o'clock to 10 : 20, somewhere in there." Later he testified that Fetterhoff's timecard was punched out at 10:58 a.m., but that he did not know if Fetterhoff "loaded the tools on my time or his." This agrees with Fetterhoff's testimony to the effect that Bilyeu discharged him about 10:40 a.m. Accordingly, I credit Fetterhoff's testimony and find that Gott returned to the plant and entered Bilyeu's office about 10:30 a.m. and before the discharge. Bilyeu testified that it was company policy not to retain an employee involved in a garnishment "that is legal and binding," and that the only reason he dis- charged Fetterhoff was "because he lied to me about that garnishment ." In this connection he testified that on February 5, he went to the post office before going to the plant; when he opened his mail at the post office , he discovered the receipt from the Magistrate Court; "Fetterhoff was fired at the post office as far as I was concerned"; when he got to the plant about 8:30 a.m., he immediately went out into the shop to find Gott in order to have him discharge Fetterhoff ; not finding him, he returned to the office and spoke to Mayberry, asking him, "What's hap- pened on this garnishment? You are making a payment on the garnishment. [Fet- terhoff] said he didn't owe it"; Mayberry told him that he had been informed by Household Finance that it had released the garnishment since Fetterhoff had agreed to make payments "on the side"; "between 10 and 10 : 20" he again went out into the shop to look for Gott; he then returned to the office and questioned Mayberry further about the garnishment ; and he discharged Fetterhoff after this conversation. I find that the Respondent's reason for the discharge was a mere pretext. Bilyeu admitted that he knew that the garnishment had been released before he discharged Fetterhoff. As for Fetterhoff's alleged lying, it is difficult to understand from Bilyeu's testimony how he could have arrived at this conclusion before the discharge. According to Bilyeu, Mayberry had merely informed him that Fetterhoff had made arrangements to make payments directly to Household Finance. He did not question Fetterhoff about the matter , but discharged him without giving any reason 10 minutes after Gott returned to the plant . Under all of the circumstances, I find that Fetterhoff was discharged because of his union activity in violation of Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic , and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and that it take certain affirmative action designed to effectuate the policies of the Act. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the Respondent discharged James Fetterhoff on Febru- ary 5, 1966. Accordingly, it will be recommended that the Respondent offer Fetter- hoff immediate and full reinstatement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of pay suffered by reason of the discrimination by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement , less his net earnings during such period in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on such sum, such interest to be computed in accordance with the formula prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discharging James Fetterhoff because of his activities on behalf of the Union, thereby discouraging membership in the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization of its employees, by discharging employees or otherwise discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their membership in or activities on behalf of the Union, or making threats of reprisal because of such activity. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer James Fetterhoff immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges, and make him whole in the manner set forth in the above section entitled "The Remedy." (b) Notify James Fetterhoff if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. CRAWFORD MANUFACTURING CO. 989 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary for the determination of the amount of backpay due under these recommendations. (d) Post at its plant in Springfield , Missouri, copies of the attached notice marked "Appendix ." 3 Copies of said notice , to be furnished by the Regional Director for Region 17, after being duly signed by the Respondent or its authorized representatives, 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 to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing , within 20 days from the date of the receipt of this Decision , what steps it has taken to comply herewith.4 ' In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." 4In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." Crawford Manufacturing Co., Inc. and Amalgamated Clothing Workers of America, AFL-CIO. Cases 17-CA-2645 and 17-RC- 4687. November 15, 1956 DECISION AND ORDER On April 15, 1966, Trial Examiner Owsley Vose issued his Dec Sion in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Gen- eral Counsel filed cross-exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 161 NLRB No. 91.