Hamburg Delivery

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael Bednasz, d/b/a Hamburg Delivery and Jerome McCarthy. Case 3-CA-4189 Upon the entire record, including my observation of the witnesses,' I make the following: May 6, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On January 29, 1971, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner further found that Respond- ent had not engaged in certain other unfair labor practices as alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a brief in support thereof. The Respondent filed a brief in opposition to General Coun- sel's exceptions. 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Michael Bednasz, d/b/a Hamburg Delivery, Hamburg, New York, his agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Buffalo, New York, on January 6, 1971, pursuant to a charge filed the preceding July 23 and a complaint issued October 30, presents questions whether Respondent dis- charged the Charging Party because of the latter's member- ship in, or activities on behalf of, Truck Drivers Helpers & Dockmen Union Local No. 375, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and whether Respondent interrogated or threatened employees with respect to their union activities. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, an individual proprietor engaged at Ham- burg, New York, as a provider of motor freight delivery services and related services, is admittedly engaged in trans- porting goods moving in interstate commerce, and is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharge of Jerome McCarthy On the morning of June 24, 1970, Respondent discharged his mechanic, Jerome McCarthy, upon learning that a truck on whose brakes McCarthy had just finished working had been involved in an accident because its brakes had failed. This was only the last in a series of mishaps involving vehicles on which McCarthy had worked, and the record strongly suggests that his competence as a mechanic was open to serious question. McCarthy had been engaged in some union activity under the leadership of another employee, one Schaefer.2 Indeed, as appears below, McCarthy had furnished Respondent with some information as to Schaefer's union activity, and early in June 1970 (3 weeks before the discharge) McCarthy admitted to Respondent that he had told Schaefer to see the union business agent if Schaefer wanted assistance in forming an organization. It is largely on this evidence (based on McCar- thy's testimony which Respondent denied but which I credit), and on evidence of Respondent's opposition to having a union represent his employees, that the case for General Counsel rests.' On this record General Counsel's' evidence gives rise at best to a suspicion, and the case as to McCarthy must be dismissed for failure of proof. B. Interference, Restraint, and Coercion In late February or early March, McCarthy and two other employees engaged in a discussion about the desirability of having a union represent them. McCarthy testified that about a week after that, Respondent asked him if he had heard anything about union talk, pressed him to name the men involved, and urged him to report if he heard more about it. In that same conversation, according to McCarthy, Respond- ent said that "he would close the doors and operate with two or three trucks ... if any union tried to come in." Late in May, McCarthy in response to an inquiry of Schaefer suggested if Schaefer wanted to organize the shop he should get in touch with the Union's business agent. Early in June, according to McCarthy, Respondent again asked if he had heard any union talk, and from whom, to which McCarthy replied that he had told Schaefer to see a union business agent. McCarthy further testified that Respondent on that occasion and at least twice after that told McCarthy The parties waived their rights to argue orally and to file briefs. Schaefer was discharged a month after McCarthy. There is no claim of illegality in Schaefer's case. ' McCarthy also testified that Respondent upon discharging him stated that he did not have Respondent's interests at heart. I credit Respondent's testimony that he told McCarthy that the latter "was not looking out for our part of it." I credit Respondent's explanation that he was referring to the cost of upkeep and the necessity for having safe vehicles on the road. 190 NLRB No. 52 HAMBURG DELIVERY that he should never have told Schaefer how to go about getting a union in the shop. Early in June Schaefer asked Respondent for a raise. Ac- cording to Schaefer, Respondent replied that "if [Schaefer] kept [his] nose clean and didn't stir up trouble [he] would have had a raise a long time ago." Respondent denied making any of the statements at- tributed to him by Schaefer and McCarthy. I credit their testimony to the extent noted above; I do not find that Re- spondent made other illegal threats attributed to him by McCarthy and denied by Respondent. I find, however, that by interrogating McCarthy as to his union activity and that of other employees, by asking him to report future union activity, by threatening to curtail operations if a union came in, and by implying that Schaefer's union activity had cost him a raise, Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. Respondent, by questioning employees as to their own union activity and that of other employees , by asking em- ployees to report on further union activity , by threatening to curtail operations if a union became the bargaining represent- ative, and by implying that an employee 's union activity had cost him a raise in pay, engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. Respondent did not commit an unfair labor practice in discharging Jerome McCarthy. THE REMEDY I shall recommend the conventional remedy for the various infractions of Section 8(a)(1). See N.L.R.B. v. Bailey Com- pany, 180 F.2d 278 , 280 (C.A. 6); N.L.R.B. v. Sunbeam Electric Manufacturing Co., 133 F.2d 856, 861-862 (C.A. 7). 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 The Respondent, Michael Bednasz, d/b/a Hamburg Delivery, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating his employees with respect to their union membership or activities or that of their fellow employees. (b) Asking employees to report to him on future union activity of which they may hear. (c) Threatening to curtail operations if a union becomes the bargaining representative of the employees. (d) Withholding wage increases, or stating or implying that he has withheld wage increases, because of an employee's union membership or activity. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 283 (a) Post at its place of business in Hamburg, New York, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by the Respondent's repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by him for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' ' In the event that the Board 's Order is enforced by a Judgement of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " ' In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 3, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employees in their right to form, join, or assist labor unions, or to refrain from such activity. WE WILL NOT question employees as to their union membership or activity, or that of their fellow em- ployees. WE WILL NOT ask employees to report union activity to us. WE WILL NOT threaten to curtail opei ations if the em- ployees choose a union to represent them. WE WILL NOT withhold wage increases, or suggest that we have done so, because of an employee's union membership or activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to form, join, or assist any labor organization. MICHAEL BEDNASZ, D/B/A HAMBURG DELIVERY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100.