Kelly Transfer, Inc.

KELLY TRANSFER, INC. Kelly Transfer, Inc. and Over-the-Road, City Trans- fer, Cold Storage, Grocery and Market Drivers and Helpers, Inside Employees, Local No. 544, affiliat- ed with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 18-CA-4072 October 25, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 19, 1974, Administrative Law Judge Rob- ert Cohn issued the attached Decision in this pro- ceeding. Thereafter, Respondent 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 modified below, and hereby orders that the Respondent, Kelly Transfer, Inc., Minneapolis, Minnesota, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Delete paragraph 1(a) and reletter the subse- quent paragraphs accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. i While in agreement with the Administrative Law Judge that a bargain- ing order is appropriate here , Members Kennedy and Penello rely solely on the 8(a)(1) and (3) violations committed by the Respondent as the basisfor such an order See Steel Fab, Inc., 212 NLR B No. 41 (1974). They therefore do not adopt the Administrative Law Judge's 5(a)(5) finding. Member Fan- ning dissents from the dismissal of the 8(a)(5) finding of the Administrative Law Judge for the reasons stated in his dissent in Steel-Fab, Inc, supra APPENDIX 329 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 Board has found that Kelly Transfer, Inc., violated the National Labor Re- lations Act, as amended, and has ordered us to post this notice. We therefore notify you that: WE WILL bargain collectively, upon request, with Over-the-Road, City Transfer, Cold Stor- age, Grocery and Market Drivers and Helpers, Inside Employees, Local No. 544, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of all our employ- ees in the bargaining unit described below with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of em- ployment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time drivers em- ployed by Kelly Transfer, Inc., excluding of- fice clerical employees, guards, and supervi- sors as defined in the Act. WE WILL NOT discharge or otherwise discrimi- nate against employees because of their union membership or activities. WE WILL NOT coercively interrogate employees concerning their union activities. WE WILL NOT threaten our employees with re- prisals if they join the Union or otherwise en- gage in union activities. WE WILL NOT promise our employees benefits if they refrain from joining the Union or other- wise engaging in union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, or refrain from any or all such activities. WE WILL offer Dellis and Dennis Reich imme- diate and full reinstatement to their former posi- tions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privi- leges, and make each of them whole for any 214 NLRB No. 52 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD losses they may have suffered by reason of our engaged in commerce within the meaning of Section 2(2), discrimination against them . (6) and (7) of the Act. KELLY TRANSFER, INC. DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge : This proceed- ing, tried before me at Minneapolis, Minnesota, on March 7 and 8, 1974, with all parties present and represented by counsel, involves a complaint issued I pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), alleging that Kelly Transfer, Inc. (herein the Company or Respondent), violated Section 8(a)(1), (3), and (5) of the Act by engaging in certain conduct more fully described herein. By his duly filed answer , Respon- dent generally admitted the jurisdictional allegations of the complaint, and further conceded that it discharged the two alleged discriminatees on January 11, but denied that such termination was motivated by an intent to interfere with the charging Union's organizational activities. After the close of the hearing, and-within the time allowed , a brief was filed with me by counsel for the Respondent, which has been duly considered? Upon the pleadings, stipulations of counsel , the evi- dence, including my observation of the demeanor of the witnesses,' and the entire record in the case, I make the following: FINDINGS OF FACT 1. COMMERCE At all times material herein, Respondent, a Minnesota corporation, has maintained its principal office and place of business in Minneapolis, Minnesota, where it is engaged in the transportation of floor covering materials and relat- ed products. During the year ending December 31, 1973, which period is representative of its operations during all times material hereto,, Respondent, in the course and con- duct of its business operations, performed transportation services valued in excess of $100,000, of which in excess of $50,000 were performed for other nonretail enterprises lo- cated within the State of Minnesota, each of which either- annually receives goods and materials valued in excess of $50,000 at its facilities in the State of Minnesota directly from points outside the State of Minnesota, or annually sells and ships goods valued in excess of $50,000 from its Minnesota facilities directly to points located outside the State of Minnesota. I find and conclude that the Respondent is an employer I Dated February 13, 1974, based upon a charge filed January 11, 1974. All dates hereinafter refer to calendar year 1974, unless otherwise indicated 2 Counsel for-'Respondent also subsequently filed a motion to correct the transcript of proceedings. No objection having been filed by any of the other parties, the motion is hereby granted. - 3 Cf. Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159. 1161 (1966). 11. THE LABOR ORGANIZATION INVOLVED Over-The-Road, City Transfer, Cold Storage, Grocery and Market Drivers and Helpers, Inside Employees, Local No. 544, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein the Union), is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background -Respondent is essentially a local cartage operation which picks up and delivers materials (mostly carpet and linole- um) in and about the Minneapolis-St. Paul area. Its offices are located in the home of its president and owner, Robert Kelly, who also, on occasion, may make a delivery himself. Its employee complement at the time of the events herein consisted of four regular drivers, one regular part-time driver, and several drivers who might be classified as "ca- sual," i.e., they were on call when needed! The drivers normally drove their trucks to their home in the evening or parked them in the parking lot of Carson Pirie Scott, the Respondent's principal customer . It was at the latter loca- tion that the drivers normally met every day to secure their loads and exchange information. The record further re- flects that Robert Kelly viewed this small organization somewhat as an extension of his family , and that he as- sumed a rather paternalistic relationship with the drivers. It is in this context that we view the evidence respecting the union campaign which commenced on the evening of Jan- uary 3. B. The Union Meeting and Its Aftermath Dellis Reich contacted the union representative, and a meeting was set up to be held at his home on the evening of January 3. Present were Dellis and Dennis Reich, along with employee Michael Power and two union representa- tives . s At the meeting, the union representatives discussed the advantages of belonging to their organization , and the three employees signed union authorization cards at that time. The following day, Friday, January 4, the union repre- sentative filed a petition for an election with the Regional Office, of the National Labor Relations Board,6 and also mailed a letter (certified-return receipt requested) to the Company advising that the Union represented a majority 4 The regular drivers were Mike Power, Dellis Reich, Dennis Reich (who are twin brothers), and Michael Regan (a half brother of Robert Kelly). The latter is alleged in the complaint to be a foreman, but, for reasons explained infra, I find this allegation not to have been sustained by the evidence. The regular part-time driver was John O'Brien Michael Regan was apparently not invited to the meeting because of his relationship to Robert Kelly. Power testified that John O'Brien. the regular part-time driver, knew about the meeting, but did not attend because O'Brien's father and Robert Kelly were close friends. 6 Case 18-RC-9850 (G C. Exh. 6). KELLY TRANSFER, INC. 331 of its employees employed as drivers and requesting a meeting for the-purpose of collective bargaining. Due to the rather haphazard way in which mail is handled by the Respondent the record is not altogether clear as to the ex- act time when Robert Kelly was apprised of this action by the Union. That is to say, Respondent's mail is handled in the normal course by its bookkeeper, David Pinks.' It is his responsibility to receive and sort the incoming mail for the Respondent and he normally goes to the offices of Respon- dent (in Kelly's home) during the middle or latter part of the week for this purpose. He testified that it was Wednes- day or Thursday, January 9 or 10, when he first saw in the mail something that resembled the petition for election filed by the Union. He immediately sent it to the Company's attorney and did not recall when he notified Robert Kelly of its receipt. The Union's letter, above re- ferred to, was apparently kept in the Post Office until signed for by Pinks on January 18. The Company never responded to the Union's letter of January 4. Also, on Friday, January 4, Michael Power had a con- versation with Michael Regan concerning the previous evening's activities. The conversation took place behind Pliam's Linoleum Company (a customer of Respondent) around 6:30 p.m. Both participants agreed that Power told Regan that Power and the two Reich brothers met with a union representative the previous evening and, according to Power's testimony, the discussion centered around how this might affect the Company. Regan asked if Power in- tended to tell Bob Kelly, to which Power replied that he had promised the Reich brothers that he would not say anything about the meeting and asked Regan to do like- wise. According to Regan, Power said that Kelly would be finding out about it the following week anyway.8 Power testified that the following Monday morning, at about 10-a.m., he telephoned Kelly from Carson Pirie Scott and told him that "we talked to the Union organizer." Kel- ly inquired who was the one that called the organizer, but Power did not respond directly. That is to say that he named the three who participated in the meeting without specifically naming the employee who contacted the organ- izer. Kelly indicated that he was disappointed that the em- ployees did not talk to -him first and said, "Well, we're probably going to have to make some changes in the Company's policy, maybe lay somebody off." Kelly recalled a telephone conversation with Power on Monday, January 7, but claimed that it took place in the evening after dinner. According to Kelly's testimony, Pow- er said that he, Dellis, and Dennis had had a meeting; when Kelly asked the purpose of the meeting, Power re- sponded that they had some grievances. Kelly responded, "Well, it's funny they didn't come to me with the griev- 7 Pinks is also secretary-treasurer of the Company. a Regan further testified that he had a discussion with Kelly concerning the conversation with Power, but "not until after, you know, he (Kelly) had found out about it." This conversation, according to Regan's testimony, did not take place until a week later, i e., Saturday, January 12. When Regan was asked how he knew that Kelly had "found out about it," Regan re- sponded, "I guess he must have told me " Kelly, on the other hand, testified that he first learned of the union activity on Friday night, January 11, when his brother Mike Regan called him and said that he ( Regan) had been "talking to the fellows .. and said they were going to the Union." ance. Perhaps I know what the grievances are, Mike. They are terminated, they are through." Kelly denied that the word union was ever mentioned in that telephone conver- sation.9 C. The Discharges of Dellis and Dennis Reich Dellis Reich was employed by-the Company as a truck- driver from 1969 until his discharge on January 11, 1974. His brother, Dennis- Reich, worked for the Company from June 1971, also as a truckdriver, until his discharge on Jan- uary 11, 1974. There is no issue raised-by the Respondent with respect to the driving competency of either of these two, employees; rather they were assertedly discharged be- cause of their alleged propensity for drinking. As respects Dellis Reich, the record, shows that on one occasion in 1969 and another in 1970, he was convicted of diving with an open bottle of liquor in his car, the result of which his diver's license was revoked for a period of time. Nevertheless, Dellis continued to work for the Company as a driver since Minnesota law permits professional drivers to drive under a separate chauffeur's license. The Respondent's insurance carrier required that from March 1, 1970, until April, 1973, Dellis Reich be placed on a non- standard policy which necessitated a higher premium. However, Dellis Reich paid the additional premiums for this nonstandard insurance policy, so that Respondent did not suffer on this account. As respects Dennis Reich, the record reflects that he also was convicted of an open bottle violation prior to his em- ployment in 1971, but it does not appear that his license was revoked. The record further reflects that there were no traffic violations involving Dennis Reich subsequent to 1971 until his discharge. Nevertheless, Robert Kelly testi- fied as to several drinking incidents which occurred at so- cial events during 1971 and 1972, which embarrassed him and which resulted, according to his testimony, in warnings to the employees.10 9 To the extent that their versions of the conversation differ, I credit Power who impressed me as an honest and forthright witness, and addition- ally was testifying as an employee against his current employer (see Georgia Rug Mill, 131 NLRB 1304, 1305 (at fn. 2) (1961). enfd as modified. 308 F 2d 89 (CA 5, 1962), Astrosystems, Inc, 203 NLRB 49 (1972) Kelly also testified articulately and with apparent candor respecting many matters, but was quite vague, indefinite, and inconsistent when it came to the critical issue of when he first learned of the union activity, and when he decided to discharge the Reich brothers as discussed infra Moreover, I have considered that Kelly may have made a mistake when he attributed the cause of the grievances to the fact that the Reichs had been terminated since even under the Respondent 's theory of the case, the Reichs did not become aware of their discharge until Thursday, January 10. Respondent offered some documentary evidence (Resp. Exh. 11) which was intended to show that Kelly was making deliveries for Carson Pine Scott on January 7 and therefore could not have been at home at the time that Power claimed he called Kelly. However, Respondent's attorney ac- knowledged that the exhibit only showed that Kelly made deliveries for Carson Pine Scott on January 7 without showing the time of such deliveries Therefore, the exhibit does not necessarily negate Power 's testimony in that reard ° Both Dennis and Dellis Reich admitted to drinking at the social events, but denied that it was as extreme as Kelly claimed, or that they were in any way warned or threatened with discharge following any such event I have no doubt that Kelly was perhaps embarrassed with some of the conduct of the Reich brothers which occurred at parties as a result of their drinking, but I doubt that he connected this with their employment to the extent of .Continued 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelly further testified as to one incident during the sum- mer of 1973 when Dellis Reich called him from a bar and said that he was not going to be in the following day be- cause he was "going north," and that Dellis on that occa- sion sounded as if he had been drinking. Dellis Reich ac- knowledged calling Kelly on that occasion, but contended that he asked for a day off to count against his vacation. Kelly replied that it would be all right if he could get a replacement. Although Kelly did not apparently view seri- ously Dellis Reich's taking a day off, he was apparently troubled that when Dellis spoke with him over the tele- phone Dellis appeared to be under the influence of alcohol. Shortly thereafter, Kelly contacted a police officer, Rich- ard Rood (who was also employed by the Hennipen Coun- ty Alcohol Safety Action Project) and requested that he speak to his employees on the subject of drinking and driv- ing. Rood made such a talk at a restaurant to Respondent's employees in August 1973. Kelly testified that in late November or early December 1973, he began getting reports that following working hours on Fridays, after they received their checks, the Reich brothers would proceed to a bar, have a few drinks and then drive the Company truck home in such a condi- tion. He further testified that that was "the final thing." However, he did not reach a conclusion to discharge them at that point in time as the evidence discloses that he raised the issue of their drinking at a board of directors meeting of the Company held on December 27, 1973.11 Kelly testi- fied that, at that meeting, he advised the other participants that the discharge of the Reich brothers was under consid- eration, and requested their opinion. Kelly further testified that the decision was made at that time. However, at an- other place in his testimony, Kelly stated that "the actual final decision [to discharge Dennis and Dellis] was made, I believe, on New Year's day." 12 In any event, following the decision to terminate, Kelly determined that such decision was to be communicated to the Reich brothers by letter rather than a personal confron- tation. He testified that he determined to call his insurance agent, Tom Napier, the following day and request the lat- ter to write a letter substantiating a telephone conversation which the two men had the first part of December relating to the problems concerned with drinking and driving. drivers that he had been concerned about the problem in Decemberbut wanted to wait until the holidays were over before bringing it to their attention. Napier performed as requested, i.e., he dictated the letter, his secretary typed it, and he signed it the same day. However, before she was able to mail it to Kelly, the latter stopped by Napier's of- fice and picked it up by hand. Kelly testified that it was on January 2 that he made the request and picked 'up the letter, as aforesaid. He then "took the letter immediately out to [his] wife at McCarthy's Restaurant," where she was employed as a secretary. There, Kelly, with the assistance of his wife, drafted a letter to both Dellis and Dennis Reich, which Mrs. Kelly typed and Robert Kelly signed. The letters (which were identical except for name and address) were dated January 4, and stated as follows: Dear Dellis (or Dennis): Our rising costs of operation naturally preclude us from incurring any unnecessary expenses. Employee driving records have been closely scrutinized by our insurance agents and will reflect in their rates to us more than ever this year. The accompanying letter and resulting subsequent meetings of our directors have brought us to the point of making some changes. After careful consideration of this situation and your personal drivers record, we find it necessary to termi- nate your employment . Such termination will be effec- tive as of Friday, January 11, 1974. Please leave your truck, keys and all materials belong- ing to Kelly Transfer, Inc. at Pliant Linoleum Compa- ny, West Broadway and Washington Avenues North. You will receive termination pay by mail after Janu- ary 18, 1974. Cordially, Napier, a witness for the General Counsel, testified that KELLY TRANSFER, INC. he received a telephone call from Kelly sometime after the Robert E. Kelly, holidays,13 stating that he (Kelly) was having problems President with his drivers again and requested Napier to draft a letter which Kelly could show to the drivers respecting this prob- lem. Kelly also requested that Napier predate the letter to December 21, 1973, so that Kelly could indicate to the threatening them with discharge therefor. In any event, the incidents oc- curred at times rather remote from the time of`discharge. iI Present at that meeting were Kelly, Michael Regan , his brother James Regan, and David Pinks. This was, assertedly, following a discussion of the matter with his wife over the telephone on New Year's Eve. 13 He was unable to recall a specific date; he testified that normally he would have been able to reconstruct such specific date from his secretary's stenographic notes However, apparently, the request came while his secre- tary was in his office and she utilized a piece of paper rather than her pad in taking the letter, and thereafter disposed of the piece of paper To each of the letters was attached the letter from Napi- er to Kelly which stated as follows: Dear Bob: This letter is to advise you again that the insurance company has a complete list of -drivers, date of birth and driver's license numbers covering all employed persons operating the vehicles insured under your pol- icy. As you know, we had a very difficult time in continu- ing insurance for Dellis Reich due to his open bottle citation and for sometime had to maintain him in a KELLY TRANSFER, INC. non-standard market. The insurance companies are very concerned as to the driving records of all drivers of vehicles and thus I must urge and pre-warn you to reconsider your employees hiring policy as it is imper- ative that you maintain employees that are mature in their driving habits by maintaining good personal and commercial motor vehicle driving records. Your insur- ance could be seriously jeopardized and will be in- creased or cancelled if you maintain drivers with poor driving records. I hope that this letter finds you well and looking for- ward to a very happy holiday season and will look forward to receiving the up-to-date drivers names, birthdates and driver's license numbers as soon as pos- sible. Thank you for your help in this matter. Should any questions arise, please do not hesitate to call me. Sincerely, VALLEY VIEW, INC. Tom Napier, Vice President 14 Margaret Kelly testified that during the telephone con- versation with her husband on New Year's Eve, she "thought he was finally getting around to doing it," i.e., making up his mind to terminate Dellis and Dennis Reich. She offered to type a letter for him when he "got his stuff together," since she assumed he would want to notify them by letter. She further testified that Kelly came out to the restaurant on the afternoon of Friday, January 4, at about 2:30 or 3 p.m.; that he had a letter written out in longhand on yellow paper "pretty much what he wanted to say," and that after some discussion as to content, she typed it. Kelly then signed them and left them on her desk, following which she "ran them through the [postage] meter." She then placed them in the outgoing mail box and that was the last she saw them. The envelope in which Dennis Reich's letter was deliv- ered shows a red Pitney-Bowes postmark dated January 7 and a U.S. Postal Service postmark dated January 8 (G.C. Exh. 14). Margaret Kelly explained this by testifying that she always sets up the meter in the morning after the mail has come so that, assuming this practice was followed on the day in question, she would have set up the meter on Friday morning January 4 to indicate January 7. The letters were actually delivered by mail to the Reich brothers, and were received by them on Thursday, January 10. The following day, Friday, January 11, Dennis Reich had a conversation with Michael Regan in the lunchroom at Carson Pine Scott's. No one else was present, and their respective versions of the conversation are at substantial variance. Reich stated that Regan thought it was a "dirty thing" that the employees did not inform Robert Kelly be- 14 As a matter of fact, the census information referred to in Napier's letter had already been supplied on December 3, 1973 (see Resp. Exh. 5). Napier testified that the holiday felicitations were suggested by his secre- tary. 333 fore they contacted the Union, but indicated that if Dennis would "not go on with the Union and would go along with Regan," the latter would attempt to arrange a meeting with Dennis and Bob Kelly at the latter's home. Dennis indi- cated initial acceptance of the idea, following which Regan telephoned his brother at the latter's home. Regan returned and advised that Dennis would be able to return to work but he did not think that the same would apply to Dellis because Kelly thought that "Dellis is the one that orga- nized this Union." During the conversation, Regan indi- cated that the reason for the discharge of the Reich broth- ers was because they joined the Union without first inform- ing his brother. Regan testified that Dennis Reich came into the lunch- room and handed Regan a note the substance of which was that the NLRB had received the grievance and it was un- der investigation." Regan further testified that Dennis "ex- pressed a fear of losing his job," and wanted to know if anything could be done.16 Regan replied that he would telephone his brother to see if a meeting could be arranged, and did so at I1 a.m. that morning. It was arranged that Dennis could speak with Kelly the following day, and Re- gan returned to the lunchroom to advise Dennis. Regan testified that "Bob is willing to talk to you, but I don't know about Dell." 17 Dennis responded that he did not know whether he would be willing to talk without Dellis or not to which Regan said "Ok, fine, do what you think is best." Dennis testified further that he saw Regan after work that day and told him that he had not made his mind up respecting coming back to work and that he would let Re- gan know the following morning. Regan testified, that, on that occasion, he met Dennis and Mike Power at the bar and said that what had happened was Dennis' own fault and that there was nothing that Regan could do about it. The following morning, according to Dennis' testimony, he called Regan at the latter's apartment and told him that he "would not go [Regan's] way in the Union when the other two would more than likely be out of a job." 18 15The alleged note was never introduced into evidence ; Regan testified that he probably lost it 16 Regan stated that they did not discuss the discharge letter "specifical- ly." but he ( Regan) "was aware of what had transpired," and that Dennis "was aware that [Regan] was aware " Regan was not interrogated as to how he became "aware of what had transpired " 17 It is interesting that Regan included the latter phrase of the above- quoted sentence since he had just testified as follows as respects his tele- phone conversation with Kelly: A. I said, "Dennis would like to have a talk with you," I says, "is that possible') " And Bob said, "Sure, it's possible I'll be more than happy to talk to Dennis " He told me to tell him to come over at II o'clock the next day, Saturday Q. Anything else in that discussion? A Nothing, that was all Q. All right, when did you next talk to Dennis9 A I walked back into the lunchroom and I told him, I say, "Bob is willing to talk to you," but I says, I don't know about Dell" Dell was out of town at the time I says, "I don't know if he'll talk to Dell or not, Dell is going to have to set up his own arrangement, but he will talk to you After a consideration of all factors bearing on credibility. including demeanor, I have concluded that credibility must be resolved in favor of Dennis Reich On this point I have considered, inter alto, the foregoing (1) Continued 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following morning, Saturday, January 12, Regan had a conversation with his brother, Robert Kelly, at the latter's home. According to Regan (Kelly did not testify as to_ this conversation), Kelly was mad and upset, apparently because he was under the impression that Regan was in the group that had talked to the union organizer. Kelly asked Regan "do you want to tell me about the meeting you had the other night?" Regan replied that he did not attend that meeting and had nothing to do with it. Regan did not testi- fy further as to what else transpired at the meeting with his brother. Respondent proffered evidence which tended to show that on or about January 3, Kelly contacted one Thomas Fedora (who had previously worked for the Company sev- eral years prior thereto) for the purpose of soliciting his employment with-the Company as a truckdriver. Fedora agreed, and reported for work on Monday, January 14. Respondent contends that this buttresses its argument that the decision to discharge the Reich brothers was made prior to the Respondent's knowledge of their union activi- ties. However, the record shows that the other truckdriver, John O'Brien, quit his employment in February; that dur- ing the last 9 months of 1973, O'Brien regularly worked at least 3 or 4 days a week whereas during the first several weeks-of 1974 (until he quit) he worked only I day per week. Accordingly, it would seem that it is just as reason- able an inference that Kelly knew of O'Brien's intentions and hired Fedora to replace him as it is that Kelly hired Fedora to replace the Reich brothers.19 Analysis and Concluding Findings as to the 8(a)(3) Allegation As previously mentioned, Respondent defends this as- pect of the case on the grounds that: (1) ][t had ample basis for discharging the Reich brothers prior to the commence- ment of the union campaign; (2) Kelly made the decision to discharge them prior to their participation in union ac- tivities or his knowledge of any such participation. I find, based upon a consideration of the record as a whole, that the evidence does not sustain these contentions. At the outset, it is apparent that Kelly viewed the organi- zational activities of his employees with great antipathy. This is'evidenced by the testimony of his brother, Michael Regan, who stated that Kelly was very mad and upset with him when Kelly was under the impression that Regan had attended the union meeting. This would seem to be a rath- The fact that Regan failed to produce the note which was assertedly handed to him by Dennis, which, according to Regan, prompted the conversation; (2) There would have been little reason for Dennis to advise Kelly that "a grievance" had been presented to the Board for investigation, (3) Kelly did not testify as to any conversation he had with his brother on Friday morn- ing; it will be recalled that Kelly testified that he first learned of the union activities by a telephone call from Regan on Friday evening, and did not mention any request by Dennis for any consideration regarding employ- ment; (4) Regan testified that "Dennis expressed a fear of losing his job," the fact is that Dennis had already been notified the day previously that he - had been discharged effective January 11 19 Kelly testified that on or about the first or second week in January, the Company lost a client whom O'Brien served almost exclusively O'Brien was not called as a witness although it was not shown that he was unavailable. Subsequently, Respondent hired another truckdriver, Bill Kronstedt er normal and expected reaction to one who viewed his company in the paternalistic manner previously described. The animus is also, of course, reflected in Kelly's threat of layoff communicated to Power, as well as Regan's state- ments to Dennis Reich on January 11. It cannot be gainsaid that for several years prior to the events here in question, Kelly had wrestled with-and had been frustrated by-the Reich brothers' "drinking prob- lem." However, the most serious aspect of this problem that appears on_ the record had to do with the open bottle violation of Dellis Reich which resulted in his being placed on a premium insurance policy from 1971 to April 1973.20 Nothing had occurred since that remote time with respect to either of the Reich brothers' driving records which would give rise to a decision to discharge both of them except for the unsupported "reports" which Kelly asserted- ly received during late November or early December that the Reich brothers were driving their trucks home after work under the influence of alcohol. I note the absence of any corroborative testimony on this important point, as well as the Reich brothers' denial that Kelly ever raised the matter with them prior to the discharge. But even assuming the events transpired as Kelly de- scribed them, he admittedly did not make a decision at that time to discharge the brothers because of their conduct. Indeed, he did not make the decision following a discus- sion of the matter at the December 27 meeting of the board of directors (although Kelly, early in his testimony, stated that "the decision was made by him at that time"). Kelly finally testified that the decision was made by him on Jan- uary 1, following a discussion of the matter with his wife the previous evening. However, except for his wife, Kelly notified no one of such decision, and the Reich brothers were not apprised of it until they received the letters on January 10.21 Meanwhile, the Union meeting took place on Thursday evening, January 3, and Mike Power told Michael Regan about it the following day. Considering the closely knit relationship between Robert Kelly and his brother, it may be reasonably inferred that Regan told his brother about the events shortly after he learned about them. But, in any event, I have found that Power told Kelly about the meet- ing on Monday morning, January 7. I am convinced, and therefore find, that Kelly lost,no time thereafter in making the decision to discharge the Reich brothers, and requested the predated letter from Napier to make it appear that the reason for the decision, and the decision itself, related back to the events which occurred in 1973. Indeed, it appears that Kelly was so intent upon "scotch[ing]-the lawful mea- sures of the employees before they progressed too far to- ward fruition" 22 that he was not content to receive Napier's letter in the ordinary course of mail but rather hurriedly picked up the letter at Napier's office. He then proceeded immediately to the office of his wife for the pur- 20 Even this did uotresult in economic disadvantage to the Respondent since Dellis made up the difference out of his own pay. 21 1 note the discrepancy in the testimony of Kelly and his wife to the extent that Kelly testified that he requested and received the letter from Napier the following day, January 2, and immediately requested that his wife type and mail the letters to the Reich brothers. Margaret Kelly testified that Kelly requested her to type the letters on January 4 - 22 N.L RB v Jamestown Sterling Corp., 211 F.2d 725 (C A. 2, 1954) KELLY TRANSFER, INC. 335 pose of typing it. I am convinced that this event took place on the afternoon of January 7 and not on the afternoon of January 4 as she testified. This finding is not only corrobo- rated by the postmarks which appear on the letter, but I find it incredible that Kelly, who went to such great efforts to secure the'letter posthaste from Napier without it being handled in the normal course of mail, would allow the dis- charge letter to be handled in the "matter-of-fact" way in which Margaret Kelly described it. Finally I am persuaded by the comments made by Kelly to Power on January 7, and by Regan on Friday, January 11, to the effect that Robert Kelly apparently concluded that Dellis Reich was the prime instigator of the Union (since, among other things, the original meeting was held in his house) and therefore, through his brother Michael Re- gan, sought to explore the possibility of creating a cleavage between the two brothers by inducing Dennis to forego the Union. Accordingly, based upon direct as well as circumstantial evidence in the record, I find and conclude that Robert Kelly was aware of the union activities of the Reich broth- ers at the time he made the decision to discharge them, and that such conduct was, in fact, "the- straw that broke the camel's back." It is by now well established that even though sufficient grounds may have existed to warrant dis- charge, if it was union activity which actually triggered the action, a violation of the Act resulted. The principle is well stated by the Court of Appeals for the Second Circuit in N.L.R.B. v. Great Eastern `Color Lithographic Corporation, 309 F.2d 352, 355 (C.A. 2, 1962), enfg. 133 NLRB 911 (1961): The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities. The fact that the em- ployer had- ample reason for discharging them is of no moment. It was free to discharge them for any reason good or bad, so long as it did not discharge them for their union activity. And even though the discharge may have been based upon'other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act. [Footnote omit- ted.] If, for example, the employer had long contemp- lated discharging Pellizzari for his inveterate smoking in violation of plant rules, and his joining the union was merely the final straw, the discharge must be held to be improper, D. The Supervisory Status of Michael Regan The complaint alleges that Michael Regan was a super- visor within the meaning of Section 2(11) of the Act, at the time of the events herein. The evidence reflects that Regan was a truckdriver for Respondent, performing generally the same duties and functions as the other truckdrivers de- scribed above. There is no evidence that he had the author- ity to hire or fire other employees, or, generally to direct them in their work. He was paid the same rate per hour as the others received, and the record does not reflect that he enjoyed any special privileges not enjoyed by the other em- ployees except that he did, on occasions, have authority on behalf of Robert Kelly to call other drivers (casual employ- ees) to work when there was a demand for them.-Neverthe- less, as a brother of the owner and president of the Compa- ny, Michael Regan possessed a position and status in the corporate hierarchy which was superior to that of the other drivers. Thus, he was being considered as a candidate for vice president of the Company, and participated in the board of directors meeting December 27. There, he was called upon and did voice his opinion with respect to the suitability of the Reich brothers for continued employ- ment. Moreover, he admittedly acted as a conduit between Dennis Reich and Robert Kelly on January II respecting the tenure of employment of the Reich brothers. In view of all the foregoing, I find that Regan, although not possessing or exercising that degree of authority and responsibility to constitute him a Section 2(11) supervisor, was sufficiently "allied with management" to constitute him a representative of management whom the employees could reasonably believe imparted to them the decisions of management23 Accordingly, I find and conclude that the statements made by Regan to Dennis Reich that: employ- ees had been discharged because of their activities on be- half of the Union; that Dennis could return to work if he changed his mind about the Union but that Dellis could not return to work because he was the principal organizer of the Union, all constituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act.24 E. The Alleged Refusal To Bargain The complaint, as amended at the hearing, alleges the following to constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full time and regular part-time drivers employed by Kelly Transfer, Inc., excluding office clerical em- ployees, guards and supervisors as defined in the Act. The Respondent does not seriously contest this allega- tion, and the evidence fully supports it. Accordingly, I find. and conclude that the foregoing unit description is appro- priate for bargaining. It further appeared that at the time the Union made its written request for recognition and bargaining, as above described, it represented three of the five employees then comprising the unit. I therefore find and conclude that it represented a majority of the employees in the unit at the time of such demand. Respondent did not reply to the de- mand either orally or in writing. Rather, it embarked- upon 23 See Swift & Company, 115 NLRB 752, 753-754 (1956): see alsodiscus- sion of this issue in N.L R B. v. -Bell Aerospace Company, Diu. of Textron, Inc, 416 U S 267 (1974), M J Pirolh and Sons, Inc, 194 N-LRB 241. 249 (1971), enfd 80 LRRM 3170 (C.A. 1, 1972), Wichita Eagle & Beacon Pub- lishing Co. v. N.L.R.H. 480r F.2d 52-(C.A. 10), cert denied 416 U.S. 982 (1974): Arduini Manufacturing Corp 153 NLRB 887, 890-891 (1965). , 241 have also taken into consideration Regan's statement as bearing on the reason for the discharges in reaching my conclusion as to the 8(a)(3) allegation . However, I do not find sufficient evidence that any of the state- ments made by Regan "created the impression that Respondent was engag- ing in surveillance of employees' union activities"; therefore I will recom- mend that that allegation in the complaint be dismissed. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a countercampaign to undermine and destroy the Union's majority status. This campaign included, as above de- scribed, the discriminatory discharges of two of the em- ployees comprising the majority status of the Union, and thus made resolution of the representation question impos- sible by way of a Board-conducted election 25 Under these circumstances, a Gissel-type remedy requiring Respondent to bar ain with the Union, upon request, is clearly appro- priate. Respondent's unfair labor practices indicate a general attitude of opposition to the purposes of the Act. Accord- ingly, a broad cease and desist order is necessary and ap- propriate to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in this case, I make the following. 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 the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce, and the free flow thereof. V. THE REMEDY It having been found that Respondent committed cer- tain unfair labor practices, it must be ordered to cease and desist from further engaging in such conduct and to take remedial action designed to effectuate the policies of the Act. The Respondent unlawfully refused to, bargain with the Union on demand; accordingly, it must be ordered to bar- gain with the Union, in the unit found appropriate, upon demand. In the event an agreement is reached, embody such understanding in a signed agreement. It having been found that Respondent discriminated against its employees by discharging them, it must be or- dered to reinstate them, and to make them whole for any loss of earnings they may have suffered as a consequence of the unlawful discrimination in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962) 27 25 The Union withdrew its petition in Case I8-RC-9850 on March 5 (G.C. Exh. 7) 26 See N LR.B v. Gissel Packing Company, Inc., 395 U_S. 575, 613-614 (1969). See also Royal Aluminum Foundry, Inc., 208 NLRB 102 (1974), Felsa Knitting Mills, Inc., 208 NLRB 504 (1974); Plastic Composites Corp., 210 NLRB-728 (1974). 27 Respondent contends that the ordinary remedy of reinstatement of the alleged discriminatees should not be applied in the instant case because of their, propensity for alcohol. In support of such contention, Respondent points to a rule of the Minnesota Public Service Commission which states that no motor carrier shall allow one of its vehicles to be driven where the person is "addicted to the use of narcotics or habit forming drugs, or exces- sive use of alcoholic beverages or liquors." Respondent cites in support of its argument the case of N.L R.B v Big Three Industrial Gas & Equipment Company, 405 F2d 1140 (C A. 5, 1969). It is true that the record reflects that the Reich brothers indulged in the use of alcoholic beverages, perhaps to an excess on occasions. However, there is no evidence that the Public Service Commission or any other public authority ever warned or threatened the Respondent with sanctions if it continued either of the brothers in its employ; and neither of the brothers have had their driving licenses revoked for any such reason since 1970. Even during that period the Respondent allowed Delhs Reich to continue to work. CONCLUSIONS OF LAW 1. Kelly Transfer Inc., Respondent herein, is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Over-the-Road, City Transfer, Cold Storage, Grocery and Market Drivers and Helpers, Inside Employees, Local No. 544, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time drivers employed by Respondent, excluding office clerical employees, guards, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purpose of collec- tive bargaining within the meaning of Section 9(b) of the Act. - 4. The Union was, on January 3, 1974, and at all times thereafter has been, the exclusive collective-bargaining rep- resentative of the Respondent's employees in aforesaid ap- propriate unit. 5. By refusing to bargain with the Union, upon its re- quest the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By discriminating against Dellis Reich and Dennis Reich in the manner set forth above, Respondent has en- gaged in conduct to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. 7. By the foregoing conduct, by coercively interrogating employees concerning their union activities, by threatening employees with layoff because of their union activities, by advising employees that employees had been discharged because of their activities on behalf of the Union, and by instructing an employee that he could return to work if he would refrain from union activities while another employee would not be permitted to return to work because of his preeminence in the union campaign, Respondent has en- gaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 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: The facts in the Big Three Industrial case are distinguishable since in that case the discriminatee had been convicted of four traffic violations within a 12-month period and was therefore an "habitual violator" as defined in the Texas statutes. As pointed out above, no such finding of violation has ever been made with the respect to the discrimmatees in this case, and therefore the normal remedy should apply, KELLY TRANSFER, INC. ' 337 ORDER28 Kelly Transfer, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to bargain collectively in good faith with the Union as the exclusive representative of-its employees in the aforesaid appropriate unit. (b) Discharging or otherwise discriminating against its employees because of their union membership and activi- ties. (c) Coercively interrogating employees concerning their union activities, threatening reprisals for joining the Union or engaging in union activities, promising benefits for re- fraining from engaging in union activities, or in any man- ner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union as the exclusive representative of all employees in the appro- priate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- 28 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, 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. ment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Dellis Reich and to Dennis Reich immedi- ate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights and privileges, and make each of them whole for any loss of pay which they may have suffered as a result of the dis- crimination against them in the manner set forth in that portion of this decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its premises in Minneapolis, Minnesota, cop- ies of the attached notice marked "Appendix." 29 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from date of this Order, what steps Respondent has taken to comply herewith. 29 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."