Jenks Cartage Co.

368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jeffrey P. Jenks d/b/a Jenks Cartage Company and Willie J. Brown. Case 8-CA-8957 July 22, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On May 30, 1975, Administrative Law Judge Sam- uel M. Singer issued the attached Decision in this proceeding. 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. 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 and hereby orders that Respondent, Jeffrey P. Jenks d/b/a Jenks Cartage Company, Mentor, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION SAMUEL M. SINGER, Administrative Law Judge: This case was heard before me in Cleveland, Ohio, on May 1, pur- suant to charges filed on February 20 and complaint issued on March 20, 1975. The complaint alleges that Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by coercively interrogating an employee concerning his union sympathies and activities; and by un- lawfully discharging and refusing to reinstate another em- ployee (Charging Party) for engaging in protected concert- ed activity. All parties appeared at the hearing and were afforded full opportunity to be heard and to present evidence and argument. Only Respondent filed a brief. Upon the entire record' and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF RESPONDENT Respondent operates a truck terminal facility in Mentor, Ohio, where it is engaged in the interstate transportation of goods and materials by truck. His annual gross revenue exceeds $50,000. I find that at all material times Respon- dent has been and is an employer engaged in commerce within the meaning of the Act and that assertion of juris- diction here is proper. II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background Respondent commenced his trucking operations in April 1973 and employs six drivers. Although his facility is not organized, most (if not all) of his drivers are members of Teamsters locals. Employee Brown, a Local 407 member, testified credibly and without contradiction that in making deliveries for Respondent "a Teamsters man would come up and ask for your card. If you didn't have a card, you couldn't deliver on the job." Respondent Jenks testified that he has signed individual contracts, setting forth compensation and responsibilities, with all drivers, except Brown.' Each driver (including Brown) is paid by the load-a percentage of the service charge to the customer (30 percent to November 1974 and 27 percent since then) plus "stop money" (e.g., a flat $10 for each stop or "drop" made by the driver in hauling a load to a customer) if collected from the customer. In November 1974, five drivers met at a truckstop in Chickapee, Virginia, to discuss the possibility of organizing Respondent's facility. According to Brown, the men felt that "if we have to pay union dues to haul [the] freight on these different jobs, then, why not we get compensation as to union benefits." Employee Smith, another Teamsters member, testified that the meeting was precipitated by an incident in which nonunion employees had encountered difficulty unloading a load at a "union shop." 2. Discharge of Brown On January 5, 1975, Respondent Jenks telephoned Brown and asked him to deliver a load. Involved was a contract for loading nursery stock at Perry, Ohio, for deliv- ery to a number of destinations to and including North Dakota-a total of 13 stops or "drops." Jenks told Brown that he would be paid his usual commission (27 percent of the service charge), but with no drop payments. When Brown said that he would not take the load without those Respondent's name was corrected at the hearing to read as captioned 4 or reasons not disclosed, Brown (Charging Party), the second driver hired in July 1973, refused to sign a contract JENKS CARTAGE COMPANY 369 payments, Jenks commented (as he testified), "Okay, I will have to get somebody else to take it." The next morning (January 6), Brown went to the com- pany office to return the $300 "expense money" advanced him for the North Dakota trip. Brown testified that as he handed the money to the office secretary he told Jenks (who was nearby), "we want[ed] a union contract." Jenks retorted "You're fired." Jenks, on the other hand, testified that Brown said, "we would like a contract"-without characterizing it as a "union " contract-and that he there- upon said, "you're fired." He admitted, however, that he "assumed" that Brown was referring to a "union" contract since Brown had used the term "we" and "everybody else already had [employment] contracts." 3 3. Interrogation of Fisher Employee Fisher testified credibly that 2 days later (Jan- uary 8), Jenks asked him whether he wanted to be repre- sented by a union, reminding him that he (Jenks) had treat- ed him "fair." When Fisher answered that he was in "the minority," but would go along with the rest of the drivers' desires, Jenks responded that "before he would have a union in his company" he "would lock the doors." ° B. Conclusions 1. Discharge of Brown Whether Respondent discharged Brown for a legitimate reason (refusal to make a delivery) or because he engaged in protected concerted activity (asking for a union con- tract) presents only a factual question-the key issue being "what motivation truly dominated the employer in .. . discharging the employee[s]." N.L.R.B. v. Jones Sausage Co., 257 F.2d 878, 882 (C.A. 4, 1958). Viewing the record as a whole and bearing in mind that "human qualities, such as motive, can only be shown circumstantially where the pos- sessor has not previously revealed them directly" (N.L.R.B. v. Edward P. Topper d/b/a Schoenberg Farms, 297 F.2d 282, 284 (C.A. 10, 1961) ), I find that the preponderance of evidence and the reasonable inference to be drawn there- from establish that the discharge of Brown was in fact mo- tivated by Respondent's opposition to his protected con- certed activity. In reaching this conclusion, the following are among the factors to which I have given weight. 3 I do not credit Jenks' testimony that his "assumption" that Brown re- ferred to a union contract occurred to him only after the described confron- tation with Brown. Jenks' testimony on this point is vague and evasive. Thus, when first asked when it occurred to him that Brown was referring to a "union" contract, Jenks answered, "I guess shortly after he [Brown] said it " Later he said "the same day ... Maybe around noon or so." (Accord- ing to Jenks, he fired Brown "the first thing in the morning"). Asked what led him to believe that Brown "had in mind " a "union contract," Jenks replied, "I feel more or less the way [Brown] said it." Although I do not credit Brown's testimony that he used the term "union " in requesting a contract (Brown's prehearing statement refers only to a request for a "con- tract" ), I am persuaded that Jenks clearly apprehended that Brown was referring to a "union" contract. Based on the credited testimony of Fisher , an essentially truthful wit- ness. Jenks testified that he merely asked Fisher whether he was "satisfied with his employment" and that Fisher answered he was. a. Respondent's hostility toward protected concerted ac- tivity-i.e., organization of the plant-as evidenced by Jenks' January 8 statement to employee Fisher that he "would lock the doors" before he "would have a union in the company." While this threat was uttered 2 days after the discharge, it is relevant and material in assessing the motive for the discharge. "Such statement[s], reflecting the attitude of the company toward the union at a period closely following the date of . . . discharge, indicate[s] what [Respondent's] attitude undoubtedly was immedi- ately preceding that event." Angwell Curtain Company Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7, 1951). b. Significantly, Jenks fired Brown only-and then im- mediately-after he uttered his demand for a "contract" in the morning of January 6. If, as Jenks contends, he termi- nated Brown for refusing to take the load to North Dakota (Brown objected to Respondent's failure to compensate him for the 13 stops he was to make en route), why did he not fire him the night before when the refusal took place or before Brown made the demand? It would appear that the "straw that broke the back [of Respondent's] tolerance" was Brown's pressing for a union contract. (Magnolia Pe- troleum Company v. N.L.R.B., 200 F.2d 148, 149-150 (C.A. 5, 1952) ).5 c. Also significant is the changing nature of the reasons assigned for the discharge. At the outset, Respondent took the position that there had been "several incidents leading up to . . . the final incident where [Brown] had refused" to deliver the load to North Dakota. In support of this claim Jenks stated that Brown had been involved in five driving accidents in the 18 months of his employment. Jenks could not, however, recall when these allegedly took place-his best recollection being that the last one occurred "possi- bly" 3 months before the discharge. On the other hand, Jenks also testified that Brown's "refusal" to take the load was his sole reason for firing Brown, indicating that he "won't say" that the accidents "were in my mind" when he discharged him. It would seem that Respondent's vacilla- tion and equivocation as to the reasons contributing to the discharge "render its claims of nondiscrimination the less convincing." N.L.R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5, 1965). d. To be sure, there is no direct evidence that Respon- dent actually knew of its employees' organizational inter- ests prior to January 6, including their November 1974 meeting to discuss unionization. However, "A finding of knowledge of union participation may be based on circum- stantial evidence." Schill Products, Inc., supra at 572. "[I]t need not be established by direct evidence; inferences may be drawn from the surrounding circumstances." N. L. R. B. v. Pembeck Oil Corp., 404 F.2d 105, 110 (C.A. 2, 1968). That Jenks acted on the belief that Brown sought to orga- nize the shop may reasonably be inferred from Jenks' ad- mission that he "assumed" Brown had in mind a "union" S There is evidence of alleged failure on the part of other employees to take out or delay taking out loads. Although not altogether comparable, in those instances, unlike here, Jenks (according to his testimony ) "would chew [the employee] out so to speak" without firing him. One such instance in- volved a driver whom Jenks, as he stated, "chased ... pretty much all over town" only to find that he was too "inebriated" to take the load and Jenks had to obtain another driver. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement when he requested a "contract " moments before the discharge . Knowledge of the employees' organizational interest may also be inferred from the small size of the facility Jenks operated-a six-man work force with close personal contact between employees and employer. See Angwell Curtain Co., Inc. v. N.L.R.B., 192 F.2d 899, 903 (C.A. 7, 1951); N.L.R.B. v. Dove Coal Company and Lark Coal Company, 369 F.2d 849, 851 (C.A. 4, 1966). e. Finally, there is no doubt that Respondent, as he con- tends, had sufficient cause for discharging Brown for fail- ure to comply with a request to make a delivery. However, the law is well settled that "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicat- ed solely on those grounds . . . ." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7, 1964). "And a justifiable ground for dismissal of an employee is no de- fense to an unfair labor charge if such ground was a pretext and not the moving cause." N.L.R.B. v. South Rambler Co., 324 F.2d 447, 449 (C.A. 8, 1963). Accordingly, after giving due weight to all of the consid- erations adverted to, I find that those supporting a finding of unlawful discharge far outweigh those that do not. Cf. General Electric Company, 155 NLRB 208, 221-222 (1965); A/ton Box Board Company Container Division, 155 NLRB 1025, 1039 (1965); General Tire & Rubber Company, 149 NLRB 474, 480-481 (1964). I accordingly conclude that the January 6 discharge of Brown was unlawfully motivat- ed-based on Jenks' belief that Brown had engaged in pro- tected concerted activity-and, therefore, violative of Sec- tion 8(a)(1) of the Act. the meaning of Section 2(6) and (7) of the Act. THE REMEDY Since Respondent has engaged in certain unfair labor practices, he should be ordered to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. The affirmative relief should include the customary provision that Respondent offer to the unlawfully discharged employee (Willie J. Brown) immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earn- ings he may have suffered by reason thereof, by payment to him of a sum of money equal to that which he normally would have earned as wages , commissions, and bonuses, from the date of such unlawful discharge to the date of Respondent's offer to reinstate him, together with interest thereon, less net earnings (if any) during such period, back- pay and interest to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In view of the nature of the unfair labor practices Re- spondent has engaged in, I shall recommend that it be re- quired to cease and desist from infringing in any manner upon rights guaranteed employees by Section 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: 2. Interference, restraint, and coercion As found, on January 8, 1975, Jenks asked employee Fisher whether he wanted representation by a union, refer- ring to Jenks' past "fair" treatment of Brown. When Fisher indicated that he was in "the minority" as regards union- ization but that he would abide by the will of the majority of employees, Jenks said that he "would lock the doors" before he would let in a union. Jenks' conduct clearly con- stituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW A. By discharging Willie J. Brown on January 6, 1975, because he engaged in protected concerted activity, as de- scribed in section II, supra, and by thereafter failing or refusing to reinstate him, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby violating Section 8(a)(1) of the Act. B. Respondent also violated Section 8(a)(l) of the Act by coercively questioning an employee concerning his de- sire for union representation and by threatening to close the plant if a union came in. C. These unfair labor practices affect commerce within 6 The complaint did not allege that the discharge also was discriminatory, in violation of Section 8(aX3) of the Act ORDER7 Jeffrey P. Jenks d/b/a Jenks Cartage Company, Mentor, Ohio, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees by discharging or refusing to reinstate them for engaging in lawful concerted activities for the purpose of mutual aid or protection. (b) Coercively questioning employees concerning their union desires, sympathies, and activities; directly or im- pliedly threatening employees with reprisals (including clo- sure of business) for engaging in union activities; and in any other manner coercing employees in the exercise of rights guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Offer Willie J. Brown immediate and full reinstate- ment 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 privileges, and make him whole for any loss of pay he may have suffered as a result of his discharge, in the manner set forth in the "Remedy" 7 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. JENKS CARTAGE COMPANY portion of the Decision of which this order forms a part. (b) 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 Decision. (c) Post at his place of business in Mentor, Ohio, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and maintained by him for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. s 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 371 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that I, Jeffrey P. Jenks d/b/a Jenks Cartage Company, have violated the National Labor Relations Act, and I have been ordered to post this notice. The National Labor Relations Act gives you, as employees, certain rights, including the right to self-organization; to form, join, or help unions; and to engage in other concert- ed activities for the purpose of mutual aid or protection. Accordingly, I give you these assurances: I WILL NOT coercively question you concerning your union desires, sympathies, and activities; nor threaten you with reprisals if the plant is organized; nor in any other manner interfere with, restrain, or coerce you in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act. I WILL offer Willie J. Brown immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent job, with full se- niority and all other rights and privileges, since he was found to have been discharged in violation of the Na- tional Labor Relations Act. I WILL also make up all pay lost by the above-named employee, with interest. JEFFREY P. JENKS D/B/A JENKS CARTAGE COMPANY