Bulk Haulers, Inc.

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bulk Haulers, Inc. and Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 1-CA-7998 July 18, 1975 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On November 22, 1972, the National Labor Rela- tions Board issued its original Decision and Order in this case' finding, in agreement with the Administra- tive Law Judge, that the Respondent had not violat- ed Section 8(a)(1) and (3) of the Act as alleged. On a petition for review, the United States Court of Ap- peals for the District of Columbia Circuit on Decem- ber 23, 1974, reversed the Board's determinations and remanded the case to the Board for further con- sideration as specified-in its decision .2 By letter dated February 28, 1975, the Board notified the parties that they could file statements of position concerning the issues raised by the court's remand. Such statements were filed by all parties. 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. I. BACKGROUND Respondent Bulk Haulers maintains, insofar as relevant here, a truck terminal at Nashua, New Hampshire, where it employs some three to five in- terstate truckdrivers. In early November 1971, Ron- ald Hall, one of the drivers, contacted the Union and several union meetings were held at his house. Among others, employee Stephen McKay attended the meetings. Also, according to Hall, McKay was the driver to whom he talked most about the Union in November. Towards the end of the month Therriault, Respondent's vice president of operations, called McKay into a conference room where, in the course of a conversation first concerned with certain truck- ing problems, he asked McKay if he had been ap- proached by the Union, adding that McKay need not reply if he wished not to. McKay said he had been approached. Later in the conversation Ther- '200 NLRB 389. 2 Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, IBT v. N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974). riault told McKay that if the Union got in it would institute a seniority plan under which McKay could "come up short." A week or so later, Therriault dis- charged Hall, assertedly for being late for pickup ap- pointments. The Respondent concedes that it was opposed to the organization of its drivers and it also appears that it was aware of those organizational at- tempts in general and of Hall's activities in particu- lar.; II. THE ALLEGED 8(a)(1) VIOLATIONS The complaint alleged in effect that Therriault's asking McKay if he had been approached by the Union and threatening him he would come up short if the Union got in violated Section 8(a)(1) of the Act. The Trial Examiner-and hence the Board which adopted his decision-held that the interroga- tion was limited in scope, that its coercive aspect, if any, was blunted by the assurance to McKay he need not answer, and thus that it was not unlawful. With respect to Therriault's comment that McKay would "come up short" under union-instituted seniority, the Trial Examiner held it to be a permissible prediction and not an unlawful threat. The court refused to ac- cept these ultimate findings. With respect to the in- terrogation it noted that it was extremely dubious that Therriault's assuring McKay he need not answer would "blunt" any coercive effect of the questioning. As for the statement McKay might "come up short," the court was concerned that the comment might very well not be an innocent prediction because, it concluded, there was "no evidence in the record to support the trial examiner's conclusion that Ther- riault had a reasonable basis for asserting that the Union might bring in a seniority system which would disadvantage McKay." 4 However, the court's prima- ry concern with the Trial Examiner's, and thus the Board's, resolution of the 8(a)(1) issues was that the result had not been reached after "the type of inquiry mandated by Bourne and related cases." 5 Thus, it The court found that Therriault had knowledge of Hall's union activi- ties. His more general knowledge can properly be inferred from his testimo- ny that he at one time or another asked every driver but Hall if he had been approached by the Union. In support of its position the court referred to the Supreme Court's decision in N L.R.B. v. Gissel Packing Co., 395 U.S. 575, which "establishes that [employer statements as to the effect of unionization ] must be either non-coercive or a prediction 'carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control ... "' 509 F.2d at 494. Referring to Bourne v. N L.R.B., 332 F.2d 47 (C.A. 2, 1964). There the court stated that interrogation , itself not threatening, is not an unfair labor practice unless it meets certain fairly severe standards which include: (1) The background, i.e., is there a history of employer hostility and discrimina- tion9 (2) The nature of the information sought, e.g., did the interrogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e., how high was he in the company hierarchy? (4) Place and method of interrogation, e.g., was the employee called from work to the boss' office? Was there an atmo- sphere of "unnatural formality"? (5) Truthfulness of the reply. 219 NLRB No. 39 BULK HAULERS, INC. remanded the case for the Board's reconsideration of the 8(a)(1) allegations on the basis of a more compre- hensive evaluation of Therriault's conduct in light of the factors summarized above. The Board having ac- cepted the remand, we accept the court's views as the law of the case. We have outlined above the facts relevant to a broad reconsideration of the 8(a)(1) issues. It readily appears that the alleged improper conversation oc- curred shortly after unionization of Respondent's drivers began, that Respondent was aware of and op- posed to such unionization, and that the conversa- tion was conducted by a high company official, not a minor supervisor, in a conference room which was not a part of the drivers' work area. It is also perti- nent to note that the information elicited by Ther- riault-i.e., McKay's acknowledging he had been ap- proached by the Union-was almost immediately followed by a warning (to use a neutral term) that McKay should not support the Union because its success could result in an economic loss to him. Con- sequently, it appears that Therriault sought the infor- mation concerning union activities for the purpose, perhaps among others, of guiding his actions to de- feat the Union's organizational efforts. In any event, we find that in the circumstances here the interroga- tion of McKay was coercive and thus in violation of Section 8(a)(1) of the Act. Furthermore, we find that Therriault's warning to McKay that he might come up short if the Union got in was an unlawful threat. As indicated, the court found that there was no evidence to support Therriault's assertion that the Union would institute a seniority system adverse to McKay's interest. Thus, Therriault's warning was a prediction in form only but in substance was a clear threat of economic retal- iation if the Union were successful-a threat evoked by his learning through illegal interrogation that the Union had approached McKay. In these circum- stances, we find that Therriault's warning to McKay violated Section 8(a)(1) of the Act. III. THE ALLEGED 8(a)(3) AND (1) VIOLATION Ronald Hall was discharged by Therriault on De- cember 9, 1971. The Trial Examiner conceded the discharge was suspicious. However, he concluded Respondent had no knowledge of Hall's activities on behalf of the Union and on that ground alone found that the General Counsel had failed to prove the dis- charge was unlawful. The court agreed that the dis- charge was highly suspect. But it found, contrary to the Trial Examiner and thus the Board, that Ther- 245 riault did, indeed, at times relevant have knowledge of Hall's union activities. Consequently, it remanded for the purpose of the Board's determining "whether Hall's discharge was motivated by his union activi- ties" and was thus unlawful. Absent good cause there can be no doubt but that Hall's discharge was occasioned by his union activi- ties. As described above, Hall was the leading union activist among Respondent's drivers and it was he who first contacted the Union. He held several union meetings at his house and was otherwise active on behalf of the Union. Also, as stated, Respondent was opposed to the Union, and Hall's discharge occurred about a month after he initiated union organizational activities and only about a week or so after the un- lawful interrogation of McKay. The Respondent contends basically that Hall was discharged because of his poor record in arriving on time for appointments to pick up cargos, latenesses which it contends threatened the loss of its primary customer, the New Hampshire State Liquor Commis- sion.6 However, the event which precipitated the dis- charge was, according to Thernault, Hall's late arriv- al at Taylor Wines on December 6; that lateness resulted, Therriault claimed, in a telephone com- plaint from Taylor to Respondent's dispatcher who in turn informed him, Therriault, of the lateness, and consequent complaint. To be sure, in the spring of 1971-over 6 months before his discharge-Hall's lateness on several occasions resulted in a complaint to Respondent from the State Liquor Commission. However, subsequent to that time and up till Decem- ber 6, though Hall was late on various occasions- sometimes for wholly justified reasons-his work as a driver resulted in no further complaints to Respon- dent. Then came the December 6 incident as out- lined by Therriault. But we note that Respondent's dispatcher testified that he received no telephone call from Taylor complaining about Hall being late on December 6, and that he never told Therriault that he had received such a call. The Trial Examiner cred- ited the dispatcher's testimony and, in consequence, discredited Therriault. Thus, the event which Ther- 6 In its statement of position the Respondent included a "Recap of Ser- vice Failures of Ronald Hall," a document which, as it concedes, "was rejected as an exhibit by the Trial Examiner on the grounds that it was a duplication of evidence already in the official record" but which, it con- tends, "nonetheless highlights the events which led Therriault to the conclu- sion that Hall had to be dismissed from the Respondent's employ." The Union filed a motion requesting that the Board strike and disregard the "Recap of Service Failures of Ronald Hall" summary, on the ground main- ly that the record is closed and the introduction of a document, especially a previously rejected one, is inappropriate. However, the Respondent in its statement is not seeking to have the summary placed in evidence. Rather it appears there as part of the Respondent's argument and is entitled to no more or less consideration than any other argument in a brief involving an asserted recapitulation or summary of evidence in a record . Consequently we find no merit in the Union's position and its motion is denied 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD riault stated caused him to discharge Hall did not in fact occur, and Therriault's contrary testimony is ob- viously an intended coverup of what was, we find, his unlawful union-related reasons for the discharge? Therefore, as Respondent had not for some 6 months or more prior to December 6 received any com- plaints suggesting Hall's tardiness was jeopardizing its business, and as Taylor made no complaint on that date concerning Hall, we find that Respondent's proffered economic reason for discharging Hall was without substance and that the reason for the dis- charge was Hall's union activities. Consequently, we further find that Respondent in discharging Ronald Hall on December 9, 1971, violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above and in the Trial Examiner's Decision have a close, intimate, and substantial relationship to trade, traf- fic, 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 Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discharged Ronald Hall because of his union activities, we shall order that Hall be offered immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privi- r To shore up what was an obviously disintegrating position , the Respon- dent shifted grounds somewhat and sought to defend Hall's discharge on the ground that Themault knew Hall had left Nashua late and thus could properly presume he would amve late for his 3 p.m. appointment. Hall does seem to have had a proclivity for giving himself very little leeway with respect to time in reaching his appointments . Nevertheless, the record does show that Hall could have arrived at Taylor Wines on time while driving within the legal speed limits. However, he did not in fact arrive until 3.25 p.m. But Themault did not know that when he decided to discharge Hall. Furthermore, Hall testified without contradiction that he had been told by Respondent that he had a half hour allowable margin in arriving for ap- pointments at Taylor Wines. And, in any event, as stated, Hall's arrival at 3:25 evoked no complaint from Taylor. Also, as mentioned in the Trial Examiner's Decision, Hall wrote in his drivers log that he arrived at Taylor at 3 p.m., not 325 Therriault was unaware of this misstatement at the time he fired Hall. Furthermore, as the record shows, the misstatement was not made for purposes of misleading Respondent concerning Hall's time of arrival but for the purpose of making it appear when he started on his return trip at I I p.m. that he had had the required 8-hour layover leges, and that Respondent make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by paying to him a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less net earnings . Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and shall include interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). CONCLUSIONS OF LAW 1. Bulk Haulers, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating Stephen McKay concerning his union activities and by threatening him with ad- verse consequences if the Union were successful in organizing its drivers, Respondent engaged in, and is engaging in, unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 4. By discharging Ronald Hall because of his ac- tivities on behalf of the Union, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. The above unfair labor practices are unfair la- bor practices within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Bulk Haulers, Inc., Nashua, New Hampshire, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning union ac- tivities. (b) Threatening employees with adverse conse- quences if Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other union, becomes their bargaining representative. (c) Discouraging membership in, or activities on behalf of, the above-named or any other labor orga- BULK HAULERS, INC. 247 nization by discharging employees or by otherwise discriminating against its employees in regard to hire, tenure of employment, or any other term and condi- tion of employment because of their union activities. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights protected by Section 7 of the Act. (2) Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Ronald Hall immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent job, without prej- udice to his seniority or other rights and privileges or working conditions, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, such backpay to be de- termined in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Nashua, New Hampshire, estab- lishment copies of the attached notice marked "Ap- pendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- 8 In the event this 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 read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." spondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively question employees about union activities. WE WILL NOT threaten employees that they will "come up short" or be otherwise hurt if the Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other union, becomes their bargaining representative. WE WILL NOT discharge you because you en- gage in activities in support of Local 633 or any other union. WE WILL NOT in any other way interfere with, restrain, or coerce you in the exercise of your rights to organize; to form, join, or assist a labor organization; to bargain collectively through a bargaining agent chosen by you; to engage in other group activities for the purpose of collec- tive bargaining or other mutual aid or protec- tion; or to refrain from any such activities. WE WILL offer to reinstate Ronald Hall to his former job or, if that job no longer exists, to a substantially equivalent one, without any loss in his seniority or other rights and privileges and WE WILL pay him any money he lost as a result of our discrimination against him with interest at 6 percent. BULK HAULERS, INC.