Sam Aria Hauling & Excavating Co.

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sam Aria, d/b/a Sam Aria Hauling & Excavating Co. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Local 428. Case 6-CA-5356 September 29, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 25, 1971, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the com- plaint be dismissed with respect to those allegations. 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 National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. 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 brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Sam Aria, d/b/a Sam Aria Hauling & Excavating Co., Weirton, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act other than those found herein. I The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-captioned case was held before the duly designated Trial Examiner on May 20, 1971, at New Cumberland, West Virginia, on complaint of the General Counsel against Sam Aria, d/b/a Sam Ana Hauling & Excavating Co., herein called the Respondent or the Company. The charge was filed on January 29 and the complaint issued on March 31, 1971. The principal issue of the case is whether an employee of the Respondent was discharged in violation of Section 8(a)(3) of the Act. Briefs were filed by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an individual proprietorship, has its main office in Weirton, West Virginia and is engaged as a common motor carrier in the business of transporting goods in the States of West Virginia, Pennsylvania, and Ohio under a Certificate of Public Convenience and Necessity issued by the Interstate Commerce Commission. During the 12-month period preceding issuance of the complaint, the Respondent received in excess of $50,000 for services rendered in connection with the transportation of materials across states lines to and from the State of West Virginia. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED I find that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 428, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES There are two allegations of substance in the complaint. One is that owner Sam Aria, of the Respondent, a volatile, somewhat excitable, partially paralyzed, and at times almost irrational old man, gave vent to his irritation at having to have anything to do with the Teamsters Union by "hollering" all sorts of threats and imprecations at the 10 or so drivers employed by the Company. In colorful language some of his outbursts were recalled by employee witnesses. He, Aria, sat in at the hearing, several times had to be restrained while his employees told the story, but never testified. Of course I find he made all the coercive statements attributed to him by the drivers; it was enough to look at him in the courtroom-quite apart from the fact he denied nothing-to see his resentment at the whole union idea. Curiously, however, while all this was going on 193 NLRB No. 69 SAM ARIA HAULING 437 there was a Board election among the employees on December 17, 1970, all seven of the nine eligible men who voted designated the Union, and, after Board certification on December 28, there followed a series of negotiation conferences attended by Aria and the company lawyer. And, indeed, 2 months before the hearing a collective- bargaining agreement , acceptable to both parties, was completed and signed. In fairness I must say I doubt very much Sam Aria, despite his seeming dotage, would be capable of carrying out the least of his voluble fulminations In the lawyer's office he waved a knife over the head of Harold Reese, president of the Teamsters Local: "I should have killed you 15 years ago." But somehow no one was hurt, and Reese seemed more amused in the retelling than offended at the recollection. It must have been the same turbulence of mind that brought Aria to scuffle with a policeman behind the company garage on another day. The cop was having enough trouble trying to manacle him without contrary- minded Mrs. Aria pressuring him from behind. In the end, at the station house, all the officer did was remove the handcuffs and send Aria home, no doubt with an admonition to behave himself. It would appear that both the policeman and Mrs. Aria were more concerned with the chances the old man might hurt himself than with any possibility of danger to others. Certainly this was the view of Robert Barker, the driver who ran to Aria's aid that day, helped fold him into the squad car, and then solicitously drove him back from the police house, because, as he testified , he liked the old man: "Mr. Aria and Mrs. Aria to me wasjust like parents." The second complaint allegation is that the Respondent discharged this same Barker on January 22, 1971, because of his pro-Teamsters activities and thereby violated Section 8(a)(3) of the statute . The Company denies any illegal motivation in its treatment of Barker and affirmatively asserts it stopped using him only because there was not enough work. I find the evidence in its totality insufficient to support a finding that Barker was illegally discharged and shall therefore recommend dismissal of the complaint as to him Barker first came to work for the Respondent on December 29, 1970, 12 days after the Board election, and therefore had nothing to do with bringing the Union into the Company. He was not enthusiastic about the Team- sters; at the hearing he said he never expressed approval of the Union on the job, or to the Arias, and indeed he added he "might have" told them he was "mad" at the Teamsters because of an ancient gripe against Reese, the local president. "I said that I would not stand out in front on any strike with the union; I was not going to face Sam and strike I said I would go along with the majority; if the men said they were going to strike I would not go to work." Barker worked only about 3 weeks, from December 29 to January 22, a Friday. That Friday evening he telephoned Mrs. Aria to inquire whether he was needed the next day; she said, as Barker testified, "no, they was only going to use five trucks, and they wouldn't need me." He added he called again several times during the week, but Mrs. Aria repeated "she just didn't have any work." Five of the employees met with Reese at the union hall on Saturday afternoon, January 23, where among other things there was talk about striking. The case against the Respondent, according to the General Counsel, rests upon Barker's activities in connection with this meeting. It is said that he was the moving force both in bringing the meeting about and in instigating the others towards strike action. A fair reading of the record shows otherwise. The truth of the matter is Barker's prime concern was to prevent the employees from doing any such thing as striking. A week earlier there was talk among them of resorting to strike because they were dissatisfied with the progress of the contract negotiations going on between Reese and the Company's lawyer. Barker's testimony is that he became involved in these discussions because "They would have pulled an illegal strike. . . . It would have been a wildcat strike," and he did not want the employees to do that. He suggested they speak to Reese first, and it was decided Thomas Darrah would telephone Reese to inquire. Darrah called but was unable to reach the union agent ; because a call would be local, and therefore free to Barker, but a toll charge to Darrah, Darrah asked Barker to make the call later from his home. Barker finally spoke to Reese in the evening, the union president said the employees should not stnke because he was still negotiating, and Barker then passed the word back to the other drivers-"I told them not to strike." As to what happened when five drivers met with Reese the following Saturday afternoon, there is a significant variance between the testimony of Reese and that of Barker, as well as between Reese's testimony and the minutes he made of the meeting at the time . Reese recalled that he first told Barker the men should not strike-when Barker reached him by phone on January 18, and then repeated the admonition 2 days later when he talked to Darrah on the telephone and arranged to meet the men a few days later. He went on to testify that at the meeting: "They brought up a motion to strike, and it was seconded and passed unanimously.. . . Mr. Barker, I think made the motion to go on strike, and Mr. Darrah seconded the motion." The motion, whatever it was, carried . Barker's testimony is that it was not a motion to strike, but rather: "A motion to let him [Reese ] decide when to strike; not to strike, to let him, so we would be legal." The story of what really happened that day appears clearly in Reese's contemporaneous minutes. They say that he started by reporting on the details of his negotiations, informed the men the next meeting with management would take place on Monday, the 25th, and "if I can't settle for present contract, I want the right to strike at any time." It was after this, that there came Barker's motion, according to the minutes, "to give the Union the right to strike if neg. fails." It appears, therefore, that if anyone was pressuring the employees into a striking mood, it was Reese, not Barker. The employee remained, from first to last, lukewarm at best on the subject of pushing the concerted activities to the detriment of the Company. In contrast, the affirmative defense that he was released because the Respondent no longer needed Barker finds much support in the record. He had been there only 3 1/2 weeks and already on two earlier occasions had gone 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without work because there was not enough for him to do. Passing over employees in this fashion is not uncommon with this Company Darrah, a witness for the General Counsel, first hired on August 17, 1970, left on September 9. He returned on October 29 and was laid off for lack of work on November 9. He returned later and then quit. After Barker left on January 22, no other regular employee was hired until the first or second of March, when work picked up.i Mrs. Aria's testimony that the principal customer-Mike Starvaggis-reduced the number of trucks it needed that week stands uncontradicted. Even Darrah said Barker did not work on Monday, January 25, because of "lack of work. They only worked five trucks that day." There was much talk at the hearing about Barker being careless with his truck; it broke down in his hands twice in the short period he worked, the second time as he returned at the end of his shift that last Friday. Others had trouble with their trucks also, and it is not claimed Barker was released because of his relative incompetence What does stand out as a significant fact is he had been there probably less time than anyone else on the payroll. As Mrs. Aria said, the customer "didn't even use no truck; they only used two one day. They didn't have much work.. .. I had to let the older fellows do it." There remains certain testimony of Frank Galiano and Darrah about the outbursts of Sam Aria, the old man, to be considered. Galiano, also a truckdriver employee: "Well, he dust said something one day down there about Barker called Cincinnati, or Columbus, some place, called Reese, and he was hollering about that, I mean because he called him. . . He says, `I'm going to fire him. He called Columbus ...,' I don't know where it was, I don't know actually where it was `I'm going to fire him. He called Mr. Reese up clear to Columbus, Ohio' or Cincinnati, where ever he was at, now, I don't know for sure." Darrah testified that on Monday, January 25, Aria "wanted to know if I was the one that called Mr. Reese up in Ohio. And I told him it wasn't me. And he said, Then it must have been Barker. He said Barker was fired because he was split-shifting gears on Pennsylvania Avenue, and for calling Mr. Reese." There is something wanting in this testimony. Barker made clear he said nothing about his talk with Reese to either Mr. or Mrs. Aria, and there is no explanation of how Sam Aria could have known about it the week before the union meeting on the 23d. But if he believed at that time Barker had invited Reese to Steuvenville, why would he ask Darrah on Monday whether he, Darrah, had been the finger man? Further, by that time Barker had already been told by Mrs. Aria his services were not needed, and this is the time the man was discharged, according to the complaint. The unlawful reason-Barker's call to Reese-if first learned after the discharge, could hardly in fact have caused the earlier dismissal. This rather convenient testimony by Galiano and Darrah calls to mind Reese's attempt, at the hearing, to build up Barker's pro-Teamsters, or prostnke, activity. When Barker telephoned Reese at an out-of-town hotel, Reese was not there and the girl made a note of the call. Reese called back that night. When Reese decided he wanted to meet with the men, where, as the minutes of the meeting show, he demanded "the right to strike," it was not Barker he called to arrange the meeting, but Darrah; Darrah was the man picked by the drivers in the first instance to communicate with the union president. As Reese would have it, at the meeting he waved the telephone call note made by the switchboard girl, held it over his head so all could see. Why this emphasis on Barker when Darrah was the touchstone between Reese and Aria's boys? Reese has a tendency to build without substance. On January 29 he filed a charge with the Board alleging that Darrah had been discharged because of his union activities. But Darrah testified he worked continuously to the 28th and was only that evening told there would be no work for him. There is one other aspect of this case that merits consideration. The record as a whole strongly indicates it is Mrs. Aria, not her husband, who runs this business, and who made whatever decision was made concerning Barker's continued employment. Asked what she did for the Company, she started by answering: "Just take care of the business, and all that sort of stuff." It was she who hired Barker in the first instance: "He kept calling me for ajob, so I gave him a job." It seems all applicants apply to her. "They keep calling me, they say they need a job, and I tell Sam, I say, `Well, he needs a job,' so he gives it to them." She discharges people. When Barker had trouble with his truck, he called her to advise her of the fact. When other drivers noticed poor performance by Barker, again they reported their opinions to her. The company for whom the Respondent operates its trucks "call me and tell me how many trucks they want, so I mark it down." There is no reason for discrediting Mrs. Aria's testimony that she knew nothing about Barker's union activities; certainly there is no evidence anyone bothered to tell her. Her husband shoots his mouth off; he always did and he always will. This is not the case for automatic application of any principle that the knowledge of one management representative is of necessity the knowledge of the company as a whole. I do believe Mr. Aria said all the things charged to him by the various employee witnesses, including the question about who had participated in bringing about the union meeting of January 23. The fact he asked on Monday, after the alleged dismissal of Barker, whether Darrah had been the man, of itself raises a serious doubt whether any possible illegal intent of Sam Aria had anything to do with this aspect of the case. Considering the character of Barker's union activity-really favorable to rather than against the interests of the Company, the objective persuasiveness in the affirmative defense of discharge for cause, the fact it was Mrs. Aria and not her vocally antiunion husband who dealt with the driver at all times in his employment, and other related matters, I conclude that the evidence as a whole does not suffice to prove Barker was discharged because of his participation in union affairs. The following employee testimony is not entirely irrelevant. Frank Galiano: "Q. On occasion have you made the observation that no one should take Sam too seriously because of his age? A. Yeah." Thomas Darrah: "Q.... but you really I On this subject I credit Mrs Aria Employee witnesses testified others wrong outright in the light of other parts of the record were hired, but they were either too vague or otherwise unreliable, at times SAM ARIA HAULING 439 didn't take him seriously, did you, yourself, personally? A. No. We'd overlook him a lot of times." Again Thomas Darrah: "On several mornings-well, he was always saying-well, some mornings he said he'd sign up with the union ; some mornings he said he wouldn't sign up with the union." Whether or not he is rational at all times, the fact remains Sam Aria is the nominal owner of this Company, and his wife, despite the clear evidence she is the operational head of the business, did say at the hearing: "My husband, I guess he's the boss." I must find therefore that by the following statements by Sam Aria the Respondent violated Section 8(a)(1) of the Act: that the Respondent did not want the Union in its affairs and would close down its business if necessary in order to avoid dealing with the Union; that it would sell its trucks and discharge all its employees if they persisted in their union activities; that the Respondent would never sign a contract with the Union; and that it would give its employees a raise if an independent union could be found to replace the Teamsters as bargaining agent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 2 ORDER The Respondent, Sam Aria, d/b/a Sam Aria Hauling & Excavating Co., Weirton, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from threatening its employees with closure of its business in order to avoid dealing with their Union, threatening to sell its equipment and to discharge employees to discourage their union activities, telling its employees it would refuse to sign a collective-bargaining agreement with their Union, or promising raises to its employees as an inducement to abandon their chosen representative. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Post at its place of business in Weirton, West Virginia, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms to be provided by the Regional Director for the Region 6, after being signed by the Respondent, Sam Ana, personally, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive 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 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith? Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with closure of its business in order to avoid dealing with their Union, by threatening to sell its equipment and discharge employees to discourage their union activities, by telling its employees it would refuse to sign a collective-bargaining agreement with their Union, and by promising raises to its employees as an inducement to abandon their chosen union represent- ative, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact , conclusions of law, 2 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, recommendations , 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. 3 In the event that the Board's Order is enforced by a judgment 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 Order of the National Labor Relations Board." 4 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 6, 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 After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To bargain collectively through a representative of their own choosing To act together for collective-bargaining purposes or other mutual aid or protection To refrain from any or all such activities. WE WILL NOT do anything that interferes with those rights. More specifically, WE WILL NOT threaten to close the business to avoid dealing with your Union. WE WILL NOT threaten to sell our equipment or discharge you to discourage your union activities. WE WILL NOT say we will not sign a contract with your Union regardless of your desires. WE WILL NOT promise to give raises to influence you to abandon any union of your choice. You are free to become and remain members of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 428, or any other labor organization. Dated By SAM ARIA, D/B/A SAM ARIA HAULING & AND EXCAVATING CO. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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, 1536 Federal Building, 1000 Liberty, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977.