Macrila Internation U.S., Inc.

HANNON TRANSPORTATION SERVICES 49 Hannon Transportation Services, Inc., a subsidiary of Macrila International U.S., Inc. and Richard J. O'Connor. Case 3-CA-13385 29 May 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 2 March 1987 Administrative Law Judge Walter J. Alprin issued the attached decision. The General Counsel filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, fmdings, i and conclusions2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hannon Transportation Services, Inc., a subsidiary of Macrila International U.S., Inc., Lackawanna, New York, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 1 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.0 § 6621. 2 In accord with the General Counsel's exceptions and consistent with both the judge's findings and admissions in the Respondent's answer to the complaint, we expressly conclude that Hannon Transportation Serv- ices, Inc., Macrila International, U.S., Inc., and Lachmar Management Group, Ltd, are a single employer within the meaning of the Act 3 We do not adopt the judge's inclusion of a visitatonal clause in his recommended Order In the circumstances of this case, we find such a remedial provision unnecessary and we have modified the Order accord- ingly. Doren G. Goldstone, Esq., for the General Counsel. Richard Schaus, Esq. (Schaus & Schaus), of Buffalo, New York, for the Respondent. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. On 11 August 1986 1 Richard J. O'Connor, an individual, filed a charge alleging that Hannon Transportation, Inc., a sub- sidiary of Macrila International U.S., Inc. (the Respond- ent), engaged in unfair labor practices by interfering with, restraining, or coercing its employees in the exer- cise of rights guaranteed by Section 7 of the National Labor Relations Act, by interrogation regarding union activities, sympathies, or desires, by threatening to fire employees because of union activities, sympathies, or de- sires, and by discharging O'Connor because of concerted action protected by the Act, all in violation of Section 8(a)(1) and (3) of the Act. A settlement agreement was executed by Respondent on 12 September, on the basis of which the Regional Director for Region 3 approved settlement on 17 September. On 24 December the Re- gional Director ordered approval of the agreement to be, and it was, withdrawn, vacated, and revoked, and a com- plaint on the charges issued. Respondent submitted an answer, and the matter was heard by me at Buffalo, New York, on 17 February 1987. The General Counsel and counsel for Respondent each waived briefs. On the entire record of the case, and from my obser- vation of the demeanor of the sole witness, I make the following FINDINGS OF FACT Macrila International U.S., Inc. (Macrila) is a corpora- tion existing under the laws of the State of New York, with principal offices and place of business at Buffalo, New York. It wholly owns the subsidiary Hannon Trans- portation Services, Inc. (Hannon), also a New York State corporation with principal office and place of business at Lackawanna, New York, engaged in the business of pro- viding interstate transportation of goods and materials and related services, and another subsidiary, Lachmar Management Group, Ltd. (Lachmar), a Canadian corpo- ration operating at Ontario, Canada. Lachmar, Macrila, and Hannon have common corporate officers, owner- ship, directors, management, and supervision. They for- mulate and administer a common labor policy affecting employees, share common premises and facilities, pro- vide services for and provide sales to each other, inter- change personnel with each other, and hold themselves out to the public as a single, integrated business. Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. On 24 July O'Connor, a truckdriver, saw a newspaper advertisement for employment, phoned the number given, and was told to come to Respondent the next day for an interview at which he submitted an application. He was interviewed by Operations Manager Lawrence, given a driving test, and told to return home to await a phone call. The phone call, the same day, confirmed his employment and ordered him to report that same day to 1 All dates are in 1986 unless otherwise specified 284 NLRB No. 6 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD observe the loading of a truck in which he was to be dis- patched the evening of Sunday, 27 July. During the course of his employment over the next week O'Connor spoke to 6 to 8 of the 15 drivers, 4 to 5 of the 5 to 6 forklift operators, and to the 4 to 5 yard laborers, regarding workmg conditions and wages. Through his father-in-law, a union member, O'Connor obtained cards authorizing collective-bargaining repre- sentation by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (the Union), a labor organization within the meaning of Section 2(5) of the Act. O'Connor received the cards on 4 August, and distributed them over 3 to 4 days to 12 to 15 drivers, forklift operators, and yard laborers. On 8 August O'Connor was waiting to be dispatched when he was approached by Operations Manager Law- rence and Yard Manager Kaminskas, both supervisors within the meaning of Section 2(11) of the Act and agents of Respondent within the meaning of Section 2(13) of the Act. Lawrence told O'Connor that he had 10 minutes to gather his belongings and leave Respond- ent's premises. O'Connor was given a written form notice of discharge with no reason inserted at the appro- priate blank, and was orally told by Lawrence that he, O'Connor, knew the reason for the discharge, and that no reason was even necessary. The yard manager left and Lawrence asked O'Connor to identify other employees who had signed union au- thorization cards. Lawrence told O'Connor that by giving such information O'Connor would be saving jobs, otherwise Lawrence would close down the terminal. Respondent did not dispute any portion of the O'Con- nor-Lawrence conversation.2 Discussion O'Connor's discussions of wages and conditions of em- ployment, and the distribution of union representation cards as a result, constitute concerted activities protected by Section 7 of the Act. Though Respondent retained the proverbial right to discharge O'Connor for a good reason, a bad reas9n, or no reason at all, it of course has no right to discharge any employee because he had joined, supported, or assisted a labor organization or en- gaged in concerted protected activity. By interrogating 2 Respondent's answer to the complaint denied that the interrogation occurred and that the threat was made It also alleged that O'Connor's discharge was due to his having refused to execute a receipt for an oper- ations manual, and after issuance of three warning notices, two for failure to phone in on time, and one for failure to turn in "tack" cards None of this was supported by any evidence whatever. O'Connor admitted that on his first day of work he phoned in late, but denied ever having failed to turn in tack cards or ever receiving a warning notice for any reason Questioned on cross-examination regarding a "ticket" he was given on one of his trips, O'Connor admitted having been given a ticket for oper- ating a truck in excess of the state limit of weight, which he turned in to Respondent Respondent and not the driver is responsible for loading the vehicle, and for the payment of these overweight fines Regarding the re- ceipt for the operations manual, such form also provided that if the em- ployee did not give I week's notice of leaving his employment, the Re- spondent would be authorized to withhold from his final paycheck any "costs" to cover "losses" O'Connor considered this to constitute an un- lawful possible hen on wages, and told Lawrence, who raised no objec- tion, that he would not sign the "receipt" for that reason O'Connor regarding the identity of other employees en- gaged in such activities, and threatening to discharge them, or all employees, because of those activities, each an independent unlawful practice, Respondent revealed its union animus and clearly showed that any excuses for discharge it later alleged in the pleadings were not only unproven but obviously pretextual as well. The interro- gation, threat, and discharge were each acts restraining and coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act, and the discharge itself was a discrimination in employment that also discouraged membership in a labor organization, in violation of Sec- tion 8(a)(1) and (3) of the Act. On the foregoing facts and on the entire record, I make the following CONCLUSIONS OF LAW 1. Hannon Transportation Services, Inc., of Lacka- wanna, New York, a wholly owned subsidiary of Ma- crila International U.S., Inc., of Buffalo, New York, the Respondent, is an employer engaged in commerce within the meaning of the Act. 2. Lachmar Management Group, Ltd., of Ontario, Canada, Macrila International U.S., Inc., and Hannon Transportation Services, Inc., hold themselves out to the public as a single, integrated business. 3. By coercively interrogating an employee, and by threatening an employee, Respondent has violated Sec- tion 8(a)(1) of the Act. 4. By discriminatorily discharging employee Richard J. O'Connor on 8 August 1986 because of his activities on behalf of a labor organization, Respondent has violated Section 8(a)(1) and (3) of the Act. 5. These violations constitute unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act. Further, Respondent having discriminatorily dis- charged Richard J. O'Connor, an employee, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from the date of discharge to the date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 3 Moreover, consistent with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend that Respond- ent be required to remove from its records any refer- ences to the unlawful discharge of Richard J. O'Connor, and provide written notice to him of such action, and inform him that Respondent's unlawful conduct will not be used as a basis for future disciplinary action against him. 3 See generally Isis Plumbing Go, 138 NLRB 716 (1962) HANNON TRANSPORTATION SERVICES 51 The General Counsel has requested a visitatorial clause authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure. Because compliance with the recommended Order herein will be difficult if not impossible to verify without the coopera- tion of Respondent, and Respondent having displayed an attitude contrary to cooperation, I grant the request. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Hannon Transportation Services, Inc., a wholly owned subsidiary of and constituting a single business entity with Macrila International U.S., Inc., of Lackawanna, New York, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise disciplining employees for engaging in concerted activity protected under the Act. (b) Coercively interrogating any employee about union support or union activities. (c) Coercively threatening any employee about union support or union activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Richard J. O'Connor immediate and full rein- statement to his former job or, if his job no longer exists, to a substantially equivalent position, without prejudice to seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Lackawanna, New York, copies of the attached notice marked "Appendix."5 4 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Oi der of the Nation- al 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." Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. For the purpose of deter- mining or securing compliance with this Order, the Board, or any of its authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States court of appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the NationalLabor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in concerted activity protected under the Act. WE WILL NOT coercively interrogate you or threaten you about your union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Richard J. O'Connor immediate and full reinstatement to his former job or, if his job no longer exists, to a substantially equivalent position with- out prejudice to his seniority or any other rights or privi- leges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL notify him in writing that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. HANNON TRANSPORTATION SERVICES, INC., A SUBSIDIARY OF MACRILA INTERNA- TIONAL U.S., INC.