R. J. Lallier Trucking

R J. LALLIER TRUCKING 937 R. J. Lallier Trucking and Construction, Building Material, Ice and Coal Drivers and Helpers and In- side Employees, Local Union 221 , International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers' of America. Case 18-CA-4755 August 17, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On April 29, 1976, Administrative Law Judge Jerry B. Stone 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. 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 the Respondent, R. J. Lallier Trucking, Minneapolis, Minnesota, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. ' 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 (CA 3, 1951 ) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on February 26 and 27, 1976, at Minneapolis, Minnesota. The charge was filed on October 14, 1975. The com- plaint in this matter was issued on December 10, 1975. The issues concern (1) whether the Respondent discriminatorily discharged Gerald M. Garrity on June 2, 1975, and Robert L. Bauerfeld on September 1, 1975, because of their union or protected concerted activities and thereby violated Sec- tion 8(a)(3) and (1) of the Act; (2) whether the referred to discharges were nondiscriminatory or for cause or whether Bauerfeld quit his employment rather than being dis- charged; and (3) whether the Respondent made certain statements which constituted threats within the meaning of Section 8(a)(1) of the Act, or whether such statements were nonviolative within the meaning of Section 8(c) of the Act or the first amendment of the Constitution of the United States of America. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel and Respondent and have been considered. Upon the entire record in the case and from my observa- tion of the witnesses, I hereby make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and ad- missions therein. R. J. Lallier is, and has been at all times material herein, an individual proprietor engaged in the trucking business, doing business under the trade name and style of R. J. Lallier Trucking. During the year ending December 31, 1974, which peri- od is representative of its operations during all times mate- nal herein, the Respondent, in the course and conduct of its business operations, performed trucking services valued in excess of $50,000, of which services valued excess of $50,000 were furnished to Northern States Power Compa- ny and Minnesota Mining and Manufacturing Company. Northern States Power Company is a public utility sup- plying customers electrical power. During the year ending December 31, 1974, which period is representative of its operations during all times material herein, Northern States Power Company's gross annual volume of business exceeded $500,000. During the same period Northern States Power Company, in the course and conduct of its business operations, purchased and caused to be transport- ed and delivered to its facilities within the State of Minne- sota goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its facilities within the State of Minnesota, directly from points outside the State of Minnesota. Minnesota Mining and Manufacturing Company is a corporation engaged in the manufacture, sale, and distribu- tion of various products During the year ending December 31, 1974, which period is representative of its operations during all times material herein, Minnesota Mining and Manufacturing Company, in the course and conduct of its business operations, purchased and caused to be transport- ed and delivered to its facilities within the State of Minne- sota goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its facilities within the State of Minnesota, directly from points outside the State of Minnesota. 225 NLRB No. 131 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As conceded by Respondent and based upon the fore- going, it is concluded and found that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2 (2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I Construction, Building Material, Ice and Coal Drivers and Helpers and Inside Employees, Local Union 221, In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE ISSUES A. Preliminary Issues; Supervisory Status 2 At all times material herein Raymond J. Lallier has been owner of Respondent and has been and is now a supervisor of Respondent, within the meaning of Section 2(11) of the Act, and its agent. B. The Facts 3 1. Certain background facts relating to Respondent's business are revealed by the findings in the Decision and Direction of Election in Case 18-RC-10438 issued on April 28, 1975. Such decision reveals findings of the follow- ing facts excerpted therefrom. The Employer com^ienced its business operations in December 1968 and was primarily engaged in the transportation and hauling of materials for Northern States Power Company under a contract for the term January 1, 1969 to December 31, 1971. The Employer began its operations with one truck driver and one vehicle, and the number increased during the NSP contract term to 7 truck drivers operating 6 trucks and 2 loaders. The contract was subsequently extended to June 30, 1972. By the end oft' this extended term, the Employer's employee complftment dropped to 2 truck drivers, but the Employer, retained 6 trucks and 2 loaders. At that time, the Employer decided to go out of business and put its trucks up for sale. Its truck drivers at that time were represented for the purposes of collective bargaining by Local Union # 120, Gener- al Drivers, Helpers and Truck Terminal Employees, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of Amer- ica. The Employer had maintained a check-off system and had made payments to fringe benefit funds of that Local. The Employer put its trucks up for sale on June 1 The facts are based upon the pleadings and admissions therein 2 The facts are based upon the pleadings and admissions therein 3 The facts are principally based upon a composite of the credited aspects of the testimony of Garrity, Bauerfeld, Lallier, Peterson, Stromberg, Tschi- da, Bailey Peetz, and Smith , exhibits, stipulations, and statements of counsel narrowing the issues Testimony of any witness inconsistent with the facts found is discredited 30, 1972, kept two of them, and prepared to go out of business . Two of the Employer's former truck drivers sought to lease the remaining trucks. The Employer agreed, and from this time forward, the truck drivers paid their own Federal and State income tax and So- cial Security payments, which have previously been paid by the Employer. The leasee truck drivers would at times call on various contractors , securing a con- tract for services usually using the Employer's name. The Employer, however, has secured 95 percent of the business independently of the truck drivers . Otherwise the Employer must approve of the contracts secured by the drivers. The Employer collects money from the contractors for work the truck drivers perform and pays the truck drivers a percentage of the gross re- ceipts. The lease agreement entered into between the Em- ployer and the truck drivers initially was a single para- graph calling for the leasee truck drivers to pay the lessor Employer 36 percent of the gross earnings of the truck. The lease was indefinite as to term but gave either party the right to terminate upon 30 days writ- ten notice . Written notice of termination of the lease was exercised on at least one occasion . Subsequent leases became more detailed . The current leases pro- vide for a deduction of 10 percent from the gross amount the Employer receives to compensate the Em- ployer for expenses. The leases further provide that the leasees receive a percentage (36 percent or 45 per- cent depending on the type of truck) of the remaining gross amount. The truck drivers do not invest capital in the trucks and termination of the lease by the leasee does not involve a forfeiture of a security. The Em- ployer does not run a credit check on prospective leas- ees, and there are no formal payments (specific amounts) required under the lease. Furthermore, para- graph No. 2 of the current lease agreements reads as follows: During the term of thin lease the said vehicle (s) shall be used for the pickup , delivery and general trans- portation of certain materials , all in connection with one or more of said contracts and/or projects and other obligations of the company, under authority of the company. The "said contracts and/or projects" referred to in the paragraph above are apparently those to which the Employer has entered into with contractors and other parties. Therefore, according to the terms of the lease, a truck driver cannot perform work for anyone who does not have a contract or agreement with the Em- ployer. 2. Respondent's business is seasonal in nature.4 Throughout the year, however, Respondent has at least one truck (and driver) performing services for Northern States Power Company. Respondent's busy season occurs be- tween the first of October of the year and April 15 of the The facts are not in dispute and are based upon a composite of the credited aspects of the testimony of all witnesses who testified to the season- al aspects of the business R. J LALLIER TRUCKING following year. During the busy season the Respondent has 3 or 4 trucks (and drivers) operating. Respondent also sub- contracts some of its work. During the off season (April 15 to October of each year) the Respondent principally has one truck (and driver) performing work for Northern States Power Company. On occasion, however, there is more work and need for employees, and Respondent either subcontracts the additional work, employs some temporary part-time employees, or recalls regular drivers for such work. Around September of each year Respondent's busi- ness commences to increase gradually with the need of an additional truck and driver for a day or two. Most of Respondent's regular drivers receive little work opportunity from Respondent during the off-season period (April 15 to October of each year). However, if a regular driver secures regular full-time and permanent employ- ment from another employer, such driver is considered to have quit his employment.' When an employee quits em- ployment with the Respondent, accepts employment with another employer, and later is rehired by the Respondent, such employee loses his original seniority status and is ac- corded seniority rights upon rehiring on the basis of his new hiring. As indicated, when there is occasional need for a few hours of call-in work, the Respondent either subcontracts such work, employs temporary part-time employees, or calls in his regular drivers. With respect to the calling in of regular drivers for work, the Respondent utilizes the princi- ple of seniority and calls in the most senior regular employ- ee.6 Excepting for the requirement that regular employees re- main employees by not accepting employment with other employers, there is no evidence of policy or practice requir- ing such regular employees to remain available for receipt of calls or notification as to needed work. Thus, no prob- lem seems to have ensued by Respondent's inability to contact a regular employee for needed work. Rather, the Respondent appears to have simply contacted another em- ployee, regular or part-time when the originally called em- ployee could not be contacted. Respondent's agents, agents for subcontractors, or agents for the employer for whom work is done call in employees for needed work when the occasion arises. Lists of available part-time or regular employees are utilized for the placement of calls to the employees for notification to report to work. It is clear that it was the practice of regular employees to report to work and to work when notified by the Respon- dent to report to work in either the busy or off season of work. Excepting for the incidents involving Garrity in No- vember 1974, on June 2, 1975, and an incident involving Bauerfeld on June 10, 1975, there is no evidence that any regular employee ever refused to report to work and work when notified to do so. 5 The facts concerning the consideration that an employee loses his status if he accepts other full-time employment are based upon the credited testi- monial evidence relating to the treatment of Stromberg when he accepted employment with another employer and ceased being an employee of the Respondent 6 The facts are based upon the credited testimonial evidence concerning Stromberg and the treatment accorded Stromberg and others 939 Although there is no evidence that a regular employee has, in the past, refused to work when called for work, there is evidence that part-time employees have refused to work when called for work. Thus, Peterson credibly testi- fied to the effect that when he acted on Respondent's be- half, part-time employees had the option of refusing to ac- cept work when called. 3. Gerald Garrity was initially hired by the Respondent in June 1970. Thereafter, and until sometime in 1971, Gar- rity worked as a regular driver and drove a company truck. On two occasions in 1971 the Respondent discharged Gar- rity because he was late in reporting to work. On both occasions, however, the Respondent rehired Garrity in a couple of weeks. Garrity continued to work for the Re- spondent as a regular driver and drove one of Respondent's trucks until the end of June 1972.7 In August 1972, Garrity bought a truck from the Re- spondent and worked for Respondent under a lease ar- rangement.' Thereafter from August 1972, to October 14, 1972, Garrity worked for the Respondent under said lease arrangement. On October 14, 1972, the Respondent bought back from Garrity the truck that Garrity was using. From Cctober 14, 1974, to November 12, 1974, Garrity worked for the Respondent and drove one of Respondent's trucks. Around November 12, 1974, Garrity had been working and had been notified to go to another job and work for a few hours. Garrity did not do so and apparently drove Respondent's truck to a bar and had a drink or two at the bar. As a result of this incident, the Respondent discharged Garrity in November 1974, and later rehired Garrity in February 1975.9 From February 1975 to the time of his discharge on June 2, 1975, when Garrity worked for the Respondent, Garrity drove one of Respondent's trucks.10 During such time Gar- rity apparently worked a total of 7 days. 4. Robert Bauerfeld was initially hired by the Respon- dent as a driver in August 1974 and worked until May 28, 1975. At such time Respondent did not have work for Bauerfeld during the off season. Bauerfeld remained an employee of the Respondent until late June 1975 as de- termined herein." 5. On March 31, 1975, the Union (Construction, Build- Garrity's work period was in accordance with the needs of the busy season (October of one year to April 15 of the next year) and the off season (April 15 to October of each year) The question as to whether Respondent 's lease arrangement constituted drivers under such arrangement as "independent contractors" or employees has been litigated in the representation case concerning Respondent (Case I8-RC-10438) The decision in such case issued on April 28, 1975, and found that the drivers operating trucks under the lease arrangements were em9ployees within the meaning of the Act Lallier testified in detail about this incident It is clear from Lallier's overall testimony that his concern was the question of Garrity's drinking while having custody of a company truck Lallier's testimony as to this event does not indicate that the question of Garrity's not going to another job was the motivating reason for his discharge on such occasion 10 Whether this was under a verbal lease arrangement, as contended by Respondent, is not material Whether under a lease arrangement or not, it has been litigated and determined in effect that Garrity was an employee within the meaning of the Act One of the issues in this case is whether Respondent discharged Bauer- feld on September 1, 1975, by not recalling Bauerfeld to work As set forth later herein, it is determined that Bauerfeld in effect quit his employment around June 11, 1975, and that Respondent considered that Bauerfeld had quit his employment as of late June 1975 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Material, Ice and Coal Drivers and Helpers and Inside Employees, Local Union 221, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) filed a representation petition in Case 18-RC- 10438, for an election to be conducted by the Regional Director Region 18 among certain employees of the Re- spondent.12 6. Either around March 25 or 26, or at some point of time after March 31, 1975, and before April 16, 1975, Presi- dent Lallier asked his four driver employees to come over to his house to discuss whether they wanted to go union or stay under the lease. At this time three of the four drivers were operating under a written lease arrangement with the Respondent. The fourth driver, Garrity, did not have a written lease arrangement with Lallier. The Respondent contends, however, that Garrity had a verbal lease arrange- ment with the Respondent.i3 Lallier told the employees in effect that when he bid a job, he knew how much he was paying the employees per hour, that he had raised their pay in January when he went on a per ton basis, that he would look at the financial situation if they stayed on a lease program, that, however, if they went under the union contract, he would have to take another look at the contract and see if there was enough profit to stay in the business. Lallier questioned each man as to whether the employee wished to remain with the "lease" arrangement or go with the Union. Three of the employees indicated that they preferred to stay with the lease arrangement. Garrity, who did not have a written lease arrangement with Lallier, asked what would happen if he did not sign a lease. Lallier told Garrity that if he didn't sign a lease, he wouldn't work. Garrity told Lallier that he was in doubt, that he wanted to check with his lawyer first. Garrity also told Lallier that he preferred going with the Union rather than the lease arrangement. 7. On April 16, 1975, the NLRB representation hearing in Case 18-RC-10438 was held. At the hearing the Employer's representatives sat at one side of the room and the Union's representatives sat at another side of the room. In addition to representatives for the parties, Garrity, Bauerfeld, and Charles Peterson attended the hearing. Garrity and Bauerfeld sat on the side of the room with the Union. The issues in the representation case concern (1) whether the drivers who worked under the lease arrangements were independent contractors or employees within the meaning of the Act, and (2) whether Peterson was an employee with expectancy of future employment Bauerfeld was presented as a witness to certain of the issues. 8. On April 28, 1975, the Decision and Direction of Election in Case 18-RC-10438 issued. It was found in said decision that the drivers who worked under lease arrange- ments were employees within the meaning of the Act. Sometime after April 28, 1975, the election in Case 18- RC-10438 was scheduled for May 28, 1975. 12 The facts are based upon stipulations of the parties 13 Such contention does not have to be resolved since it has already been Events of May 21, 1975; Threat of Loss of Work 9 The General Counsel alleges and the Respondent de- nies that "on or about May 21, 1975, the Respondent's owner, Lallier, at a restaurant in St. Paul, Minnesota, threatened that employees would lose work time if the em- ployees selected the Union as their bargaining representa- tive." Bauerfeld credibly testified to the effect that owner Ray- mond J. Lallier had a conversation with him I week prior to May 28, 1975, at a restaurant on Payne Avenue in St. Paul, Minnesota. What occurred is revealed by the follow- ing credited excerpts from Bauerfeld's testimony.14 A. Mr. Lallier stopped me down at Northern States Power, the job, and asked me if I would go and have coffee with him, he wanted to talk to me, so I did. Q. Please relate to the Court your conversation with Mr. Lallier at that time. A. Well, I parked my truck, and we went and had coffee on Payne Avenue, and he was talking about he wanted to stay with the lease, he didn't want to go union, and he said it's your decision, he said, but if you stay with the lease, you probably work the year around He said, "If it goes union, you'll probably just work during the cold season," and he said, "Think it over," and then he took me back down to work. The General Counsel contends that Lallier's statement constitutes a threat of loss of work time if the employees selected the Union The Respondent contends that such statements are expressions of opinions protected by Sec- tion 8(c) of the Act and by the first amendment to the Constitution of the United States of America. Considering the facts, it is clear that the Respondent was conveying to the employee the real probability of loss of work opportunity if the employees selected the Union. There is no evidence to reveal that the Respondent's pre- dictions of economic consequences were based upon objec- tive considerations. It is fundamentally clear that the Union, if selected, must bargain with the Respondent about any changes from Respondent's present mode of compensation to Respondent's employees. Conceivably a change to another mode of compensation for employees could result in effect in the same actual receipt of wages, etc., by Respondent's employees. In my opinion the Board's decision in Components, Inc., 197 NLRB 163 (1972), is controlling in this case. In such decision the Board set forth the rigorous standards, articu- lated by the Supreme Court in Gissel Packing Co., Inc. v. N L.R B 395 U.S. 575, 616-619 (1969), to be applied to an employer's statements when they constitute predictions of the effect unionization will have on employees. Such stan- dards require that "Such predictions must be carefully phrased on the basis of objective fact to convey an employer's belief as to the demonstrably probable conse- quences beyond his control. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable litigated and determined that the drivers with lease arrangements were em- 14 Lallier testified to the effect that he did not recall the conversation ployees within the meaning of the Act testified to by Bauerfeld R. J. LALLIER TRUCKING prediction based on available facts but a threat of retalia- tion based on misrepresentation and coercion , and as such without the protection of the First Amendment." I note that although the evidence reveals Respondent 's work to be essentially seasonal in nature , Lallier in effect set forth that there might be work opportunity if the Union were defeated and less work if the Union were selected. The message conveys Respondent 's power to control such de- termination and the overall statement is not supported by an objective factual basis Accordingly, I conclude and find that the Respondent , by Lallier, violated Section 8(a)(1) of the Act by threatening employees (on May 21, 1975) with less work opportunity if they selected the Union. 10. On May 28, 1975, the representation selection in Case 18-RC-10438 was conducted . Gary Stromberg, Frank Tschida, Robert Bauerfeld, and Gerald Garrity were the eligible voters. The results of the election were three votes for the Union and one vote against the Union. On June 4, 1975, the Union was certified (by the Region- al Director for Region 18 as the exclusive collective-bar- gaining representative of all full-time and regular part-time employees employed by the Respondent at its St. Paul, Minnesota, facility; excluding office clerical employees, guards and supervisors as defined in the Act. Events of May 28, 1975; Threat of Less Work 15 On May 28, 1975, after the election in Case 18-RC- 10438 was over and the Union had won such election, Re- spondent President Lallier spoke to Garrity, Bauerfeld, and Stromberg in the parking lot. Lallier, who appeared angry, told the employees in effect that the Respondent would continue using its trucks on the Northern States Power job, that he did not need to run them other than for the Northern States Power job, and that the trucks would otherwise sit for the summer. The employees asked Lallier about the use of seniority in determining who worked. Lal- her told the employees that it was his company and he would determine who worked and who did not work. The General Counsel contends that Lallier's statements constitute a threat of loss of work time if employees select- ed the Union. The Respondent contends that the statement as made is an expression of opinion protected by Section 8(c) of the Act and by the first amendment of the Constitu- tion of the United States of America. The General Counsel argues in effect that the rigorous standards applicable to employer's statements of economic consequences following unionization as articulated by the 15 The facts are based upon a composite of the credited aspects of the testimony of Garrity, Bauerfeld, and Lather The only other witness present- ed with respect to this issue was Stromberg Stromberg did not appear to be a frank, forthright, and truthful witness to this event Rather, Stromberg appeared to be a witness who wanted to avoid testimony as to such event His testimony was to the effect that he had no real recollection as to what had occurred Garrity and Bauerfeld appeared to be more frank, forthright, and objective witnesses as compared to Lallier as to the testimony to this event I credit their testimony over Lallier's where such testimony is in conflict I discredit Lalher's testimony to the effect that he was not angry and that he not only said the trucks would sit but said that they would sit if he didn't get a higher rate of pay for his trucks from the contractors (work- ing on "highway heavy" contracts) I also discredit Stromberg's testimony inconsistent with the facts found 941 Supreme Court in Gissel Packing Co., supra, require a find- ing that the remarks were coercive and violative of the Act. Considering the facts above, I am persuaded and con- clude and find that the Respondent, by R. J. Lallier, on May 28, 1975, as alleged, engaged in conduct violative of Section 8(a)(1) of the Act by threatening employees with less work because they had selected a union as their collec- tive-bargaining representative. It is clear that, in the con- text of an NLRB election having just been held with the Union winning such election, Lallier's angry appearance and announcement of less work opportunity was meant to and did convey to employees that they would receive less work opportunity because they had just selected the Union. Such conduct is clearly violative of Section 8(a)(1) of the Act. I would note that there is no evidence to show that the Respondent had an objective economic basis for the conveyance of such threat and did not convey to the employees an objective economic basis for such threat.16 In sum, I conclude and find that the Respondent, by R. J. Lallier, as alleged, violated Section 8(a)(1) of the Act, by threatening employees on May 28, 1975, with less work opportunity because they selected the Union." Events of June 2, 1975; The Discharge of Garrity 12. Shortly before or apparently on the morning of June 2, 1975, President Lallier talked to Everett Houle, who did some subcontracting for the Respondent, and to Frank Tschida, an employee truckdrtver, with reference to setting up a job to start around noon on June 2, 1975. Lallier instructed Tschida to call Bauerfeld to report to work. Lal- her instructed Houle to have his "Bobcat" on the job.'s The job to be performed involved the digging of a garden on Clear Street in St. Paul, Minnesota. Tschida attempted to call Robert Bauerfeld to report for work. Tschida, however, was unable to contact Bauerfeld. Thereafter Tschida, around 10:30 a.m., telephoned Gerald Garrity.19 16 As indicated, I discredit Lallier's testimony to the effect that he told employees that if he did not receive higher pay for the trucks that they would sit, except for the Northern States Powerjob If Lather , as a matter of economic necessity, had to raise the rates he charged, unless he wished to threaten the employees, it does not appear logical that he would find the need to notify the employees of such conditions immediately after the elec- tion The facts reveal that normally, excepting for the Northern States Pow- erjob, there was not much work in the summer Further, I would note that even if Lather made the remarks as testified to by him, no objective eco- nomic basis for his remarks are shown or were conveyed to the employees Under the principles of Gissel Packing Co, supra, Lallier's statements, as testified to by him, would constitute threats violative of Sec 8( a)(1) of the Act 17 The Respondent seems to assume that because a union had been select- ed, his usage of lease drivers automatically would be replaced with a simple employer-employee relationship This, of course, would depend upon the result of his relationship with the Union in the collective- bargaining process As the facts reveal, the Respondent and the Union agreed to delay bargain- ing for a contract to a later date As of May 28, 1975, there is no evidence to reveal that the Employer was compelled to make economic changes as to his contracts with other contractors is Lallier testified to the effect that he instructed Tschida to call Garrity for work Tschida, however, testified to the effect that he called Bauerfeld first Under such circumstances, I am persuaded and conclude and find that the instructions were to call Bauerfeld first and then to call Garrity if Bauer- feld could not be reached n The witnesses to the issue of the telephone call to Garrity were Garrity Continued 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tschida asked Garrity if he wanted to go to work for a couple of hours that day. Garrity told Tschida that he did not want to accept such work, that the reason that he did not want to accept such work was that the notice was short and he had people coming to his family's lake home in Wisconsin and he had to be there.20 Everett Houle telephoned Lallier and reported that Gar- rity had refused or declined to come to work. Lallier then spoke to Tschida and told Tschida to have Everett Houle call one of his trucks in to get the job done. Houle brought in another truck and driver. The job was apparently com- pleted in 8 hours.21 Either during the conversation between Lallier and Houle and Tschida or shortly thereafter Lallier questioned Houle and Tschida, or other employees on the job, as to the reasons Garrity had not reported to work. At such time Lalher learned in effect that Garrity had related that he had people coming to his family's lakeside home, consid- ered that he had to be at the lakeside home, and for this reason had not accepted the Job offered. Lalher then discharged Garrity by sending him a letter as follows. June 2, 1975 CERTIFIED MAIL Mr. Gerald Michael Garrity 1089 Burnquist St. Paul, Minnesota 44106 Dear Mr. Garrity: You are hereby informed of termination of employ- ment with R. J. Lallier Trucking because of your re- fusal to work after being called today. Sincerely yours, /s/Raymond J. Lalher R. J. Lallier RJL/jl and Tschida Lallier, however, testified with respect to a telephone call from Hould and Tschida to Lallier relating to what had transpired in the earlier telephone call Garrity's testimonial demeanor appearance was that of a more fully frank, objective, and truthful witness than either Tschida or Lal- her It is clear that Tschida's testimony was incomplete in detail and that Lallier's direct testimony was not complete and in detail Lallier's complete testimony, when prompted by a prehearing affidavit, reveals that Garrity's testimony was more complete and reliable than Tschida's Respondent's counsel questioned Garrity as to the failure of his prehearing affidavit to reveal that Garrity had told Tschida that the notice of work was too short It is clear, however, that Garrity explained why he did not want to accept work It is completely logical and consistent that the explanation impliedly or directly indicated that Garrity had made other plans before such notice of work I find Garrity a completely credible witness and credit his version of what occurred To the extent that Tschida's testimony is inconsistent therewith, such testimony is discredited 20 The transcript record reveals Garrity's direct testimony to be to the effect that people were coming from the family's lake home in Wisconsin rather that going to said lake home During Garrity's further examination with reference to his affidavit, Garrity spoke of going to said lake home Lalher's testimony referred to reports (which had to originate from Houle or Tschida, who were both on the telephone with Garrity) that Garrity had to go to Wisconsin I am persuaded that the transcript record either has an inadvertent error as to reference "from" instead of "to," or Garrity inadver- tently used the word "from" instead of "to" In any event, whether Garrity told Tschida that people were coming to or from the Wisconsin lake home would not affect the ultimate results in this case Lallier testified to the effect that he did not discharge Garrity because of Garrity's union activities, that he dis- charged Garrity because Garrity refused to report to work. Lallier also testified that he considered Garrity's record of employment in deciding to fire him. Lalher testified to the effect that he considered Garrity's reasons for not report- ing to work to be inadequate. Considering the logical con- sistency of all the facts, Lallier's obvious hostility toward the unionization of his employees, and Respondent's meth- od of obtaining employees in the off season, I discredit Lallier's testimonial reasons for the discharge of Garrity. Contentions; Conclusions The General Counsel contends that the Respondent dis- criminatorily discharged Garrity on June 2, 1975, in viola- tion of Section 8(a)(3) and (1) of the Act The facts are clear that the Respondent equated the unionization of his employees and the establishment of an exclusive bargaining agent for his employees with the ne- cessity to change from a "lease" type operation. Garrity was the one employee of the Respondent who clearly re- vealed a strong interest in a straight employer-employee relationship rather than an employee lease arrangement. The Respondent had reason to believe that Garrity and Bauerfeld were strong supporters of the Union by virtue of their appearance at the representation hearing on April 16, 1975. Respondent's remarks to the employees in his poll of whether they wanted to go union or stay under the lease arrangements, the threats of loss of work opportunity if or because employees selected the Union by Lallier to Bauer- feld on May 21, 1975, and later to all the employees on May 28, 1975, clearly reveal amimosity toward the union- ization of employees and a desire to take reprisals therefor. The facts reveal that Respondent's method of usage of its employees during the off season was extremely loose. It is clear that the Respondent did not require such employ- ees to remain at a place where they could be called. It is clear that no adverse actions were taken against employees if they could not be reached when needed. Although there is no evidence that a regular employee has ever refused or declined to come to work prior to June 2, 1975, when need- ed, there is evidence that temporary employees have re- fused jobs without adverse actions taken.22 Respondent's handling of the calling of employees is often left up to noncompany indviduals to administer. Under such circum- 21 Tschida testified to the effect that he did not know how long the job would last I note the job was to start at noon As previously indicated. I credit Garrity's testimony that Tschida told him in effect that he was being offered a couple of hours work 22 On June 10, 1975, Bauerfeld, who had agreed to report to work on that date, reported to work late and found that everyone had left It was reported later to the Respondent that Bauerfeld had not shown up for work The Respondent did not discharge Bauerfeld at that time Only after Bauerfeld, during the latter part of June 1975, had reported in effect that he had quit or left Respondent's employment for another job, did Respondent consider Bauerfeld to be terminated Lalher testified that he did not send Bauerfeld a letter of termination around June 10 or I I because he had a meeting with the Union coming up concerning Garrity's discharge Considering all of the facts, I credit Lather's testimony to this effect I am persuaded that Lallier did not want to have a larger argument with the Union at this time than was necessary concerning the Garrity discharge I do not find this incident to be of significant help in resolving the issues herein R. J LALLIER TRUCKING 943 stances, I find it hard to believe that the Respondent, ab- sent discriminatory reasons, would take such a hard-nose approach and ignore an obviously reasonable reason for an employee to turn down a job opportunity received only a few hours before the job commenced. Especially is this so since the job opportunities for employees during the off season is sporadic in nature.23 Rather, considering Respondent's awareness of Garrity's interest in the Union, Respondent's hostility toward unionization of employees, and the expected change from "lease" operations to straight employer-employee relationship, I am persuaded, conclude, and find that the Respondent discharged Garrity on June 2, 1975, because of Garrity's union activity and beliefs and to demonstrate to the other employees that their choice of the Union as exclusive collective-bargaining representative was a mistake. By such conduct, the dis- charge of Garrity on June 2, 1975, the Respondent engaged in conduct violative of Section 8(a)(3) and (1) of the Act. It is so concluded and found. Events of June 9, 10, and thereafter-Bauerfeld's Quitting 13. On June 9, 1975, around 6 p.m., R. J. Lallier tele- phoned Bauerfeld, told him that he had some work for the next day, and asked Bauerfeld if he would come in to work on June 10, 1975. Bauerfeld told Lallier that he would do so. However, on June 10, 1975, Bauerfeld reported to work about 30 to 40 minutes late Since everyone was gone at that time, Bauerfeld left and returned home. Bauerfeld, who had previously applied for a full-time job with the Minnesota State Prison system , commenced work as a full-time employee on June 11, 1975, and worked for such employer until July 27, 1975. Around the latter part of June 1975, R. J. Lallier tele- phoned Bauerfeld and asked if he were still working for the Respondent . Bauerfeld told Lallier in effect that he was no longer working for the Respondent , that he had gone to work at the state prison as a guard on a full -time basis because he couldn't afford not to work steady hours. Lalli- er asked Bauerfeld to return the gas keys and truck keys. Bauerfeld indicated that he could not return the keys that day because he had to work. Lallier told Bauerfeld to mail them in and that he would send a check for what the keys had cost . Lallier and Bauerfeld also discussed a question of a doctor's bill, and Lallier agreed to pay such bill.24 After the Minnesota State Prison job , Bauerfeld worked for Indian Head Truck Lines from August 1 to around August 28, and for Twin City Freight from August 28, 1975, for about 28 days. For each of these jobs Bauerfeld sought and was hired as a full-time employee . On each job, however, Bauerfeld was laid off or let go before the 30-day probationary period had expired. After the Twin City Freight job, Bauerfeld has done some work for a company called Rayette (apparently a part of Farbege Trucking). Contentions; Conclusions The General Counsel contends in effect that the Respon- dent discriminatorily discharged Bauerfeld in violation of Section 8(a)(3) and ( 1) of the Act on September 1, 1975, by not recalling him to work during the busy season . The Re- spondent contends that it has not discriminatorily dis- charged Bauerfeld, but that Bauerfeld quit his employment and thus was terminated around the latter part of June 1975. Considering all of the facts, I am persuaded , conclude, and find, that the facts do not reveal that the Respondent discriminatorily discharged Bauerfeld on September 1, 1975. This is so despite the evidence of company knowl- edge of Bauerfeld's support for the Union and the evidence of Respondent's union animus as previously found and set forth . Rather, the facts reveal that the Respondent has, in the past, considered employees (who accepted full-time jobs with other employers ) to have quit their employment. The facts reveal that Bauerfeld had sought and had accept- ed full-time employment in June 1975 with another em- ployer and had communicated to the Respondent in effect that he was no longer working for the Respondent because of such other employment . Accordingly, it will be recom- mended that the allegations of conduct violative of Section 8(a)(3) and ( 1) of the Act by the alleged discharge of Bauerfeld be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE 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 of commerce Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 23 Garrity had worked only a few days since February 1975 and not at all for approximately a month Further , Respondent's alleged reason of "refus- al to work," as expanded to include consideration of past employment re- cord, does not warrant a different consideration 24 The facts are based upon a composite of the credited aspects of Lalher's and Bauerfeld's testimony Lalher's testimony on this incident ap- peared more complete and consistent with the overall facts than did Bauerfeld's To the extent that Bauerfeld's testimony is inconsistent with the facts found, it is dicredited Testimony was also presented with respect to whether Lallier had had discussions with Bailey of the Union as to whether Bauerfeld had quit I found Lallier's testimony to such conversations more reliable than Bailey 's testimony and credit Lallier's testimony thereto 1. R. J. Lallier Trucking, the Respondent, is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction, Building Material, Ice and Coal Driv- ers and Helpers and Inside Employees, Local Union 221, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By discharging Gerald M. Garrity, Respondent has discouraged membership in a labor organization by dis- criminating in regard to tenure of employment, thereby en- gaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By the foregoing and by interfering with, restraining, and coercing its employees in the exercise of rights guaran- teed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act. It having been found that the Respondent discharged Gerald M. Garrity on June 2, 1975, in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent offer him reinstatement to his job, and make him whole for loss of earnings within the meaning and in accord with the Board's decisions in F.. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed 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: ORDER25 benefits suffered by reason of the discrimination against him in the manner described above in the section entitled "The Remedy." (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 recommended Order. (c) Post at Respondent's place of business at St. Paul, Minnesota, copies of the attached notice marked Appen- dix." 26 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representatives, shall be posted by it im- mediately upon receipt thereof, and be maintained by it 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. Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. 25 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 26 In the event the Board's Order is enforced by a Judgment of the 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 " The Respondent, R. J. Lallier Trucking, its officers, agents, successors, and assigns, shall: 1. Cease and desist from- (a) Discharging, or otherwise discriminating against, employees in regard to hire or tenure of employment, or any term or condition of employment, because of their union or protected concerted activities. (b) Threatening employees with loss of work, layoff, or reprisals because of their union activities or protected con- certed activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Gerald M. Garrity immediate and full rein- statement to his former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously en- joyed, and make him whole for any loss of pay or other APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Gerald M. Garrity immediate and full reinstatement to his former position, or if such position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay or other benefits suffered by reason of the discrimination against him. WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of em- ployment, or any term or condition of employment, because of their union or protected converted activi- ties WE WILL NOT threaten employees with loss of work, layoff, or other reprisals because of their union activi- ties or protected concerted activities. R J LALLIER TRUCKING WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act. 945 All our employees are free to become or remain, or re- frain from becoming or remaining, members of any labor organization, except to the extent provided by Section 8(a)(3) of the Act. R. J. LALLIER TRUCKING