Ador Corp.

National Labor Relations Board - Board Decisions

Nov 15, 1966

161 N.L.R.B. 1042 (N.L.R.B. 1966)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unilaterally change existing rates of pay, wages, commissions,
bonuses, contests, or other terms or conditions of employment of the employ-
ees in the unit described above.
WE WILL NOT refuse to negotiate and discuss with the above-named labor
organization matters relating to rates of pay, wages, commissions, bonuses, or
contests administered or controlled by Superior Motor Sales, the duration of the
contract, union-security provisions, and related matters.
WE WILL NOT refuse to meet on request of the above-named labor organiza-
tion for purposes of collective bargaining.
WE WILL NOT demand that the Union submit a package contract based on
an open shop.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Automobile Salesmen's Union of Chicago and
Vicinity or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a)(3) of the
Act as modified by the Labor-Management Reporting and Disclosure Act of
1959.
WE WILL, upon request, submit to Automobile Salesmen's Union of Chicago
and Vicinity a statement in writing showing current rates of pay, wages, com-
missions, bonuses, contests, vacation benefits, hours of employment, and other
benefits of employment in effect for new- and used-car salesmen employed by
us at the said location.
WE WILL, upon request, bargain collectively with Automobile Salesmen's
Union of Chicago and Vicinity as the exclusive representative of our regularly
employed new- and used-car salesmen, excluding all other employees, and
supervisors as defined in the Act, with respect to rates of pay, wages, com-
missions, bonuses, or contests controlled or administered by Superior Motor Sales,
vacation benefits, hours of employment, and other conditions of employment,
and embody in a signed agreement any understanding reached.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of the above-named labor organization or any other labor
organization.
SUPERIOR MOTOR SALES, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 881
U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 828-7570.
Ador Corporation and General Truckdrivers , Warehousemen
& Helpers Union Local 235, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America.
Case 21-CA-6858. November 15, 1966
DECISION AND ORDER
On July 18, 1966, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that the Respond-
161 NLRB No. 89.
ADOR CORPORATION 1043
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices, as alleged in the
complaint, and recommended dismissal of those allegations. There-
after, the Respondent filed exceptions to the Trial Examiner's Deci-
sion and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,' conclusions,z and recom-
mendations of the Trial Examiner, with the modifications set forth
below.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute the following language in paragraphs 1(a) and
1(b), and add immediately thereunder, a new paragraph 1(c), as
follows :
[" (a) Discouraging membership and activities in General Truck-
drivers, Warehousemen & Helpers Union Local 235, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, by discriminating in regard to the hire and tenure of
employment of any of its employees by discharging such employees
in order to discourage membership or activities therein."
% Respondent contends that it discharged Nesnick because he refused to obey its order
to ride double, and that such order was neither novel nor unreasonable because (1) the
Company had long considered adopting such a practice , and (2 ) riding double permitted
employees to make more trips and , therefore , ". . . did not result in a substantial loss of
pay to [them) .. . We find no merit in this contention and agree with the Trial
Examiner ' s finding, which is supported in the record , that riding double was a voluntary
practice adopted by some of the drivers for their mutual assistance. Further, an order
which requires employees to accept a 50-percent cut in pay , or to work twice the hours
previously worked to earn the same pay, on pain of being discharged , cannot be considered
reasonable . Therefore , and in view of Nesnick 's known leadership in the union activities
herein , and Respondent 's expressed opposition thereto, the Trial Examiner correctly found
that Respondent ' s asserted reason for the discharge was pretextual.
2 Respondent contends that Stainton 's remarks to the line drivers on July 10, concern-
ing their activities on behalf of Teamsters , were protected because the drivers are cov-
ered by an existing collective -bargaining agreement with another union. We reject this
contention . For, even assuming such coverage , it would be immaterial , as it does not follow
therefrom that the Respondent was free to interfere with its employees in their activities
on behalf of a rival union.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
{"(b) Interfering with, restraining, or coercing its employees by
threatening to sell its operation in order to discourage adherence to
the Union; by requesting its employees to withdraw their authoriza-
tion cards from the Union; and, by interrogating them with respect
to their activities on behalf of the Union."
[" (c) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist the above-named Union
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in any other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities."
[2. The attached notice 3 is substituted for that recommended by
the Trial Examiner.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in General Truckdrivers,
Warehousemen & Helpers Union Local 235, International Broth-
erhood of Teamsters, Chauffeurs , Warehousemen & Helpers of
America, or any other labor organization, by discharging
employees or otherwise discriminating in any other manner with
respect to their tenure of employment or any term or condition
of employment.
WE WILL NOT interfere with, restrain , or coerce our employees
by interrogating them with respect to their union or protected
activities ; by requesting that they withdraw their support from
the above-named or any other labor organization ; and by threat-
ening them with adverse economic consequences in the event they
select the Union as their bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization , to form labor organizations , to join or assist the
above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in any other protected concerted activities for the pur-
IIn the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals Enforcing an Order 11
ADOR CORPORATION 1045
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement conforming to
the provisions of Section 8(a) (3) of the National Labor Rela-
tions Act, as amended, requiring membership in a labor organi-
zation as a condition of employment.
WE WILL offer to Edward M. Nesnick immediate and full
reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination practiced against him.
ADOR CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full'
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, Eastern Columbia Building, 849 South
Broadway, Los Angeles, California 90014, Telephone 688-5229.
TRIAL EXAMINER'S DECISION
i STATEMENT OF THE CASE
With Respondent represented , this proceeding was heard before Trial Examiner
George L. Powell in Los Angeles, California, on January 11, 12, and 13 , 1966, on
complaint of the General Counsel of the National Labor Relations Board and
answer of Ador Corporation , herein called the Respondent,' The pleadings posed,
the issues of whether Respondent violated Section 8(a) (3) of the National Labor
Relations Act, herein called the Act, by discharging employees Edward Nesnick
on July 21, 1965 , and Calvin Kerns on September 30, 1965, because of their mem-
bership in and activities on behalf of General Truckdrivers , Warehousemen and
Helpers Union Local 235, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, herein called the Charging Party or
Teamsters , and independently violated Section 8(a)(1) of the Act by other con-
duct to be detailed hereinafter . The parties waived oral argument at the conclusion.
of the hearing . Briefs received from the General Counsel and the Respondent on
February 21, 1966, have been duly considered.
'The complaint which issued on October 6, 1965, amended on November 29, 1965, is
based upon a charge and an amended charge filed respectively on July 23 and October 18,
1965. All dates are for 1965 unless otherwise noted.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record and my observation of the witnesses, including their
demeanor while on the stand, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a California corporation having a principal office and place of busi-
ness at Fullerton, California, is engaged in the manufacture and sale of aluminum
doors and windows. In the course and conduct of its business it annually sells and
causes to be shipped goods valued in excess of $50,000 directly to customers
located outside the State of California. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that the Charging Party is
a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The contentions
The General Counsel contends that Respondent discharged employee Edward
Nesnick on July 21, 1965, in violation of Section 8(a)(3) of the Act because he
engaged in union activity and protected concerted activity for purposes of collec-
tive bargaining or mutual aid or protection, and joined, or supported, or assisted
the Teamsters. He further contends that Respondent violated Section 8(a)(1) of
the Act: by acts of interrogating employees as to their union activities and sym-
pathies, and by interrogating them as to whether they had signed union cards; by
soliciting the withdrawal of employees' support of the Teamsters; by promising
increased benefits if they did withdraw; by threatening employees that it would
sell its long-line operations rather than allow the Teamsters to represent its long-
line driver employees; and by offering employees promotions to dissuade them
from supporting the Teamsters. By an amended complaint, the General Counsel
adds that Respondent violated Section 8(a)(3) of the Act by discharging employee
Calvin Kerns on September 30, 1965, for the same reasons that employee Nesnick
was discharged. The Respondent denies the essential allegations of the complaint
but does admit the discharges on the given dates stating, however, that the dis-
charges were for just and sufficient cause including among other causes the fact
that Nesnick and Kerns participated in activities in which Respondent suffered
losses by theft.
B. The events
Nesnick and Kerns together with employees Michael Robuck and Carl Gonder-
man constituted the line drivers in Respondent's over-the-road hauling done under
the name of its wholly owned subsidiary R.H.J. Trucking. Respondent hauled its
own products by its own trailers under this trucking setup. The Respondent, at the
time involved in these proceedings, had a split operation. It had one plant at
Cherry Street in Long Beach and a second plant in Fullerton. In the Long Beach
plant the Respondent made and assembled sliding aluminum windows, doors, and
screens. At the Fullerton plant it primarily engaged in extruding and anodizing
aluminum parts but also did some assembly work. The Fullerton plant, in general,
provided the parts that were assembled at the Long Beach plant. Respondent had
approximately 150 employees including these four truckdrivers.
1. The Nesnick discharge
Nesnick and Kerns made a trip to the Northwest to Portland, Oregon, "riding
double" commencing on Monday, July 12 2 They returned to Respondent's Long
Beach plant from the trip in the late evening hours of Saturday, July 17, or the
early morning of July 18. Awaiting them at their arrival in the dispatcher's office
were written instructions to take another trip to the Northwest "riding double."
2 Kerns testified that this trip commenced on the Monday following the meeting of the
employees on Saturday, July 10.
ADOR CORPORATION 1047
After reading the instructions, Kerns called Lou Hie, dispatcher, to arrange for,
expense money for the new trip. Nesnick also talked to Hie telling him that he
(Nesnick) would not go out on the assigned run because he was not going to ride
double any longer. Later on in the morning of the same day Hie called Russell
Stainton, plant manager, and told him that Nesnick had refused to take the trip
assignment . Early the next morning he reported the same to Kirk Maxwell, produc-
tion supervisor.
The following day, Monday, Nesnick and We were in Maxwell's office when
Maxwell told Nesiiick, "Ed, Lou [Hie] told me that you refused to go out over the
weekend back up north with Cal Kerns." Nesnick replied, "yes." Nesnick also
stated "I am not going to drive for $.05 a mile. I'll take my trip up to Portland
on this coming weekend." Following this meeting Maxwell telephoned Stainton to
tell him that he wanted to terminate Nesnick for refusal to pull a load out. Stain-
ton told him to "hold off" as he wanted to do some checking first. Stainton then
checked with Jerome A. Stewart, his superior; with Dick Moen, Respondent's
accountant; and with Roy E. Potts, Respondent's lawyer. The next day Stainton
called Maxwell telling him to prepare the paper work for the discharge and have
Nesnick see him at the Fullerton plant.
When Nesnick reported to Stainton, Stainton told him he was being discharged
for refusing to go out on a run. Nesnick told Stainton that 'he thought that this was
a "trumped up charge" and that he felt that Respondent was discharging him for
his activities in the Teamsters Union. Stainton denied that his union activities were
the basis for his discharge but rather that he was being discharged for refusing to
obey a reasonable order. Stainton tendered Nesnick the warning slip which had
been -made out by Maxwell. The slip carried the following notation, "refusal to
obey orders. Called supervisor at 1:30 Sunday morning and stated that he was no
longer going to pull a load to the Northwest with two drivers." Stainton told
Nesnick that if he had any remarks to make about the notice that there was room
at the bottom for him to make such remarks. Accordingly, Nesnick noted, "My unit
#5 was not taken out of Service therefore I should be allowed to drive it . Instead
they put another man on it."
As these remarks are not responsive to the statement that he had refused to
obey orders, it is well to find out what Nesnick was talking about. It is accepted
by the parties that Nesnick started the practice of riding double shortly before this
occasion . It started when Kerns' truck was out of service which meant that Kerns'
was receiving no pay. Nesnick, knowing of Kerns' particular need for income,
secured permission from Respondent to let Kerns ride with him and share in the
driving. Respondent approved this voluntary arrangement as it only would pay
the regular driver of the truck the usual $10 per mile in any event and the driver
in turn would split his pay with his rider, giving him $.05 per mile. Now, on the
July 12 to 17 trip, Kerns was repaying the favor by letting Nesnick' ride with him
while Nesnick's truck was out of service. But just before completion of the return
trip on July 17, Kerns and Nesnick learned from another driver that Nesnick's
truck was not out of service but instead was being driven. Hence Nesnick was
insisting on driving his own truck for $.10 per mile rather than voluntarily share
a truck with another at $.05 per mile.
2. Nesnick's union activities and discharge and the meeting of July 10, 1965
Respondent admits that it knew that Nesnick was active in organizing the employ-
ees for the Teamsters. Following his activities, the Teamsters wrote Respondent a
letter dated July 1, 1965, claiming to represent a majority of Respondent's employ-
ees in a bargaining unit consisting of:
All production and maintenance employees, including shipping and receiving
employees, warehousemen and truckdrivers, excluding all office clerical
employees, guards, professionals, and supervisors as defined in the National
Labor Relations Act, as amended.
In this letter, the Teamsters requested recognition as the exclusive bargaining
representative for the unit and asked for a convenient date for a bargaining con-
ference. Respondent was also notified that the Teamsters were filing a petition for
an election with the NLRB but if Respondent was satisfied as to its majority repre-
sentative status they would withdraw the petition and bargain on a card check
recognition arrangement. This letter was delivered to Respondent on July 6. On
July 10 Stainton called a meeting. Because of confusion as to times and dates of a
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, or meetings, I specifically find those who attended this meeting were
Stainton, Maxwell, Hie, Robuck, Kerns, and Nesnick.3
Stainton admitted asking the drivers, "what the problem was, since we had
received the petition from the Teamsters Union regarding organizing the drivers."
He asked them if they had signed cards for the Teamsters Union and they replied
that they had done so. As for problems, they mentioned vacations, paid worktime,
and uniforms.4 His testimony follows:
I asked them why they felt that they had to go there to the Teamsters when
I was under the impression that our present union-which was the Carpenters
Local 530-represented truckdrivers. It was in the contract. The discussion
was mostly carried on between Ed Nesnick and myself with Ed doing most of
the answering there for the boys.
And I suggested to Ed that he let some of the others-the other two boys-
do the answering to get their impressions; to see what they had to say. In
talking directly to Cal Kerns, I reminded him that since he had come out of
the local drivers setup, that he was already a member of the Carpenters Union
Local 530, and just at that point the object was of having to go to the
Teamsters.
I did state somewhere in the conversation that while I had no authority to
make this type of decision, I would recommend that the Company sell the
R.H.J. Trucking Division rather than have two unions in the same plant.
We talked about the paid vacations, worktime, and uniforms.
He asked them to consider withdrawing their cards from the Teamsters Union and
the drivers left the meeting to consider this proposal among themselves. According
to Stainton's testimony on this point:
Q. What was their answer?
A. Around about 5 minutes, they returned, and Ed Nesnick again acted as
spokesman for the group, and he said that they had decided to go along with
the Teamsters Union.
8I credit the Respondent's witnesses Stainton and Maxwell as to who attended this
meeting. Witnesses for the General Counsel were so confused and confusing on this point
that I do not credit them. As an illustration of their confusion they (Nesnick, Kerns,
Robuck, and Gonderman) testified that there were two meetings held by Stainton. The
first of these meetings, they said, was on July 3. Nesnick remembered this date very well
because on the evening of July 2 as he was looking at the bulletin board be noted the
meeting for the following day. As for Robuck, he had no doubt that it was July 3 when
the first meeting with Stainton was held Gonderman testified that he only attended the
second meeting which was held on July 10 and did not attend the first meeting which was
held on July 3. Kerns also testified that the first meeting was on July 3 and the second
meeting was on July 10 and the General Counsel' s witnesses were unanimous that the
following people were at the July 3 meeting: Robuck , Kerns, Nesnick , Stainton , and Hie.
They were unanimous that the following people attended the second meeting on July 10:
Stainton , Maxwell, Hie, Gonderman, Kerns, and Nesnick. But, when Respondent established
through Nesnick that he could not possibly have attended a meeting on July 3 nor could he
possibly have been at the plant on July 2 in order to see the notice because at that time
he was on a trip from the Northwest, Nesnick changed his testimony to say that a second
meeting was held on July 13. This also could not have taken place because Kerns had
testified (before Nesnick changed his testimony) that on July 12 he and Nesnick had gone
on a trip to the Northwest from which they were returning on the evening of July 17,
as noted earlier . Also Gonderman had testified (before Nesnick changed his testimony)
that he only attended the second meeting and it was on July 10. There was no room in
his testimony for a meeting on July 13. The General Counsel's witnesses, as they testified
at this hearing, gave me the impression that they were parroting their testimony. On
their demeanor as they testified I would not credit and do not credit their testimony. In
addition I am unable to find that the General Counsel has established that more than one
meeting took place after July 6. It is further noted that the complaint as originally issued
refer'ed to the times for two meetings as June 26 and July 3, but, at the hearing, the
General Counsel amended the complaint to have the dates read July 3 and 10, 1965,
respectively.
40n May 27 Stainton had a meeting with Nesnick, Kerns, and Gonderman at which
working conditions of the drivers were discussed. This involved paid vacations, worktime,
and uniforms.
ADOR CORPORATION 1049
Q. Was there anything else said after that?
A. I asked Cal if that was his feelings. He said yes. I asked Mike if that
was his feelings. And he said yes. I said, "There is nothing further we can
talk about here."
Q. That ended the meeting?
A. That ended the meeting.
Q. Was there any subsequent meeting with the employees concerning
Teamster activities, or any organizational activities?
A. No.
Q. That meeting was on the 10th?
A. Correct.
On cross-examination, Stainton admitted that before he received the letter from
the Teamsters on July 6 he had heard rumors that the R.H.J. employees were
thinking about going into the Teamsters. He also admitted that after receiving the
letter he had conversations with General Manager Stewart and that they discussed
"that it wouldn't be advisable to have the Teamsters in the plant." Stainton under-
stood following the meeting with Stewart that Stewart did not want the Teamsters
to represent the line drivers for R.H.J. Trucking, and Stewart asked him to hold the
meeting to explain his position.
Conclusions as to Nesnick's Discharge
The General Counsel has established the fact that Ed Nesnick was the spokesman
for the long line drivers in seeking representation by the Teamsters Union. Stainton
observed this in the meeting of July 10 when he testified that Ed Nesnick did most
of the talking and did most of the answering of his questions. The fact is also
established that the practice of riding double was initiated by Nesnick in an effort
to help out a fellow driver, and that he in turn was riding with Kerns on the July 12
to 17 trip to the Northwest because his tractor was to be repaired. However,
instead of repairing Nesnick's tractor, Respondent was having another driver take
it out. Nesnick knew of this in the morning of July 18 when he refused to return
with Kerns riding double. Riding double had been voluntary and the regular driver
split his pay with the other driver. When Nesnick was given the warning slip he
wrote on the slip the fact that as his tractor was being used he wanted to drive it
rather than to split the pay by riding double anymore. Under these circumstances,
the Company's job assignment cannot be considered "reasonable." 8 Rather it was
"reasonable" for Nesnick to want to use what he considered to be his own equip-
ment. It would appear that when Respondent assigned the equipment normally
assigned to Nesnick to another driver with no reason whatsoever given of this
action, that it might be discriminating against Nesnick. At that point, if Nesnick
had quit instead of refusing to run with Kerns, such a quitting could be interpreted
as a constructive discharge.
But not all acts of discrimination or constructive discharges are violative of Sec-
tion 8(a)(3) and (1) of the Act. The Act is violated when discrimination is
engaged in to encourage or discourage membership in a labor organization. I find
that the reason given by Respondent for Nesnick's discharge was a pretext with the
real reason being concealed.
The question of the true reason is the hard nut to crack in this case. Respondent
indicated in its answer that the real reason for the discharge was the fact that
Nesnick participated in activities in which Respondent suffered losses by theft. The
General Counsel's theory is that the true reason for the discharge was to dis-
courage concerted activities for the Teamsters. In support of his theory is Stainton's
admission that Stewart did not want the Teamsters plus the fact that Stainton told
Nesnick, Kerns, and Robuck on July 10 that if it were up to him he would get
rid of the long line operation.6
Conceivably, Respondent could have been looking for a reason, any reason at
all, to let Nesnick go in view of his relationship with a former employee, Hughes.
Respondent had recently fired Hughes for alleged embezzlement of company funds
5 Respondent called the job assignment of riding double "reasonable"
e The General Counsel had a witness who supplied the precious missing link by testify-
ing that after Nesnick's discharge Maxwell told him that he had been "out to get" Nesnick
because of his Teamsters activities. Kerns is the witness and Kerns is not credited (see
infra). I do not find this statement to have been made.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while-working as the dispatcher for the long line drivers. Apparently Hughes had
been having materials hauled on return trips without routing the hauls through the
regular records. Thus he could pocket the receipts. He even had Nesnick receive
a check for $250 in his own name, cash it, and keep some money Hughes owed
him, paying the balance in cash to Hughes. This did not get on the books. Nesnick
further admitted to Respondent, when questioned about this whole matter in June
before the advent of the Teamsters, that he was suspicious that Hughes was not
honest with Respondent but he did nothing about it. Respondent did not fire Nesnick
then but kept him in order to give him time to recall instances when Hughes had
carried cargoes on return trips without official orders. Respondent was attempting
to discover the extent of the alleged embezzlement. Kerns likewise was involved in
this, but his case will be developed later.
Understandably it is much easier on all concerned if the reason for a discharge
can be said to be "insubordination" rather than "suspicion of embezzlement." The
latter might actually result in a suit for libel or slander or defamation of character.
But the situation need never get to this point. Management can hire and fire for
any reason or for no reason at all. Hence there was no need to find a pretext to
fire Nesnick for his activities with respect to the Hughes matter. Accordingly there
remains as the only true reason for the discharge, the Teamsters activities of
Nesnick and I so find that the reason given was a pretext to shield a discrimina-
tory discharge within the meaning of the Act.
Conclusions as to the July 10 Meeting
Admittedly Respondent's agent, Stainton, called a meeting on July 10, attended
by Stainton, Maxwell, Hie, Nesnick, Kerns, and Robuck, following receipt of the
letter from the Teamsters requesting recognition. There may be an excuse for an
employer to meet with his employees, and, free of any coercion or interference
with their rights to freely select a bargaining agent, explain to them any problems
management might have should the employees engage in union activities. But there
are definite risks such management takes because of the word "interfere" in Section
8 (a) (1) of the Act.7 In a limited way, an employer may ascertain if his employees
do desire a union but there is no need to develop this further under the facts in this
case .8 Here the Respondent suggested that its employees withdraw their member-
ship in the Teamsters. This it cannot do under the Act. The employees are free to
select their bargaining agent. If there is in fact another union representing a major-
ity of the employees in an appropriate unit, as there might be in this case, the way
to decide that issue is provided for in the Act and it does not include letting the
employer interfere with his employees' choice. Accordingly this act of the Respond-
ent interfered with its employees' Section 7 rights and violated Section 8 (a) (1) of
the Act.
Further, when Stainton told the employees he would recommend that Respond-
ent get rid of its long line operations after he had learned from them that they
would not withdraw from the Teamsters, Respondent coerced its employees within
the meaning of Section 8 (a) (1) of the Act.
3. The discharge of Calvin Kerns
Respondent's contention is that Kerns was discharged as a result of truck repairs
authorized by him in direct disobedience to specific directions.
On approximately August 22, 1965, Kerns was hauling a load of Respondent's
merchandise to the Northwest when his tractor broke down in the San Francisco
Bay area. He telephoned Maxwell and reported the breakdown. Maxwell directed
7 Sec 8. (a) It shall be an unfair labor practice for an employer (1) to interfere with,
restrain , or coerce employees in the exercise of the rights guaranteed in section 7
RIGHTS OF EMPLOYEES
Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and shall also have the right to refrain from any or all such
activities except to the extent . . .
8 See Blue Flash Express, 109 NLRB 591.
ADOR CORPORATION 1051
him to get the truck to a garage, find out the damage, and call back. Later that
same day Kerns telephoned Maxwell reporting that the fifth gear was jammed and
that the truck had a cracked transmission case. Stainton was on the extension tele-
phone at the time and Respondent's mechanic was present to answer his and Max-
well's questions while Kerns was on the telephone. Kerns reported that the mechanic
in San Francisco had told him that the gear case could be welded or it could be
replaced with a new case. Apparently replacement would cost $400 and would require
a very short period of time whereas a welding job would cost $75 and would take 2
to 3 days. Upon further questioning it was determined from Kerns that the total
repair job including the repair of the cracked case, if it were welded, would run
approximately $250. Stainton instructed Kerns to have the gear case welded, gave
him a purchase order number to be used on the job and placed a cost limitation of
from $250 to $300 upon the repairs. During the conversation, Kerns suggested that
while the transmission was pulled out he would like a new clutch. Stainton checked
with Respondent's mechanic, was advised that the mechanic had checked the
clutch just before the truck had gone out and that no new clutch was needed, and
related this to Kerns. Kerns argued the matter stating "Well, the clutch isn't right.
The pedal is low." Stainton again checked with the mechanic who told him, "It is
a matter of adjustment. There is nothing wrong with the clutch." Stainton then
told Kerns not to replace the clutch and to have the transmission welded. Repairs
to the truck were duly made and Kerns continued with his trip.
When the bill for the repairs was received, it was found to exceed the authoriza-
tion. Stainton investigated it. He telephoned the garage in San Francisco and dis-
cussed the statement. The repair cost was $858.09 and this included the installation
of a new clutch. The shop foreman of the San Francisco garage told Stainton that
not only had Kerns ordered the installation of a clutch but also he had authorized
the substitution of a more expensive clutch bearing than the bearing which came in
the standard clutch kit ordinarily used. After this investigation, Kerns was called
in and told he was being discharged for failing to obey instructions in that he had
authorized the clutch replacement when especially told not to do so. Kerns did not
deny the authorization. Instead he stated, "Oh, this is a trumped-up deal, just like Ed
Nesnick's."
Kerns and Hughes
Respondent's answer to the complaint includes Kerns with Nesnick in adding as
another cause for their discharge their participation in activities in which Respond-
ent suffered losses by theft. As in the case of Nesnick, above, the association with
Hughes may have weakened their security with Respondent but it didn't actually
cause their discharge.
The suspicious fact with respect to Kerns is that he received a check payable to
himself from the same customer who had given Nesnick the $250 check noted
above. The check to Kerns carried a notation on it of "Freight." Nesnick's check
had carried the notation "Freight R. H. J. Trucking." Nesnick also had another
check from the same customer for $25 with the word "Freight" on it. Both Kerns
and Nesnick swore that the $25 checks were for helping the customer unload
another cargo and had nothing to do with Respondent's business. Respondent had
investigated this in June before the Teamsters started organizing and had not fired
either man. I find the actions of Kerns in this respect weakened his security with
Respondent but it was not the trigger for his discharge.
Kern's testimony regarding this check of $25 does show his extreme bias in this
case. He at first refused to admit that the word "Freight" was on the check when
he received it. This left the implication that someone favorable to Respondent had
tampered with the evidence. When confronted by me with making a choice of
recommending an investigation leading either to an action of perjury or falsification
of record evidence, Kerns then admitted that the check when given him could have
had the word "freight" on it.
Conclusions as to Kerns
Obviously there was cause for the discharge of Kerns and the question before
me is whether Kerns was discharged for this reason or for his union activities.
Kerns engaged in no union activity, but the theory of the General Counsel appar-
ently is that inasmuch as Nesnick had been riding with Kerns the Company could
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assume that Kerns also was in favor of the Teamsters . In this respect the General
'Counsel did introduce evidence through employee Robuck who testified that on
'Saturday morning, July 17, Maxwell asked him how he would feel running double
with Kerns. According to Robuck, Maxwell said he wanted to get Kerns away from
Nesnick "because Kerns had been a good company man up to this point, and he
-was afraid that Ed [Nesnick] was going to influence him." Robuck then testified
that he then told Maxwell that he did not want to run with anybody because he
-could not afford a cut in pay. He had not previously gone double with anyone nor
had he since ridden double . He also testified that before he and Maxwell broke up
,in the conversation that Maxwell again told him that he wanted to break Nesnick
and Kerns apart and he wanted to keep the other drivers away from Nesnick. I
do not credit this testimony of Robuck. As I observed him on the stand his testi-
mony seemed memorized and not a natural recollection of the events. Further,
after hearing Maxwell testify I cannot believe that he would have said to Robuck
what Robuck testified he had said . Additionally, if Respondent were seriously
interested in separating Nesnick from Kerns it could have done so by sending Kerns
,out alone and giving Nesnick back his own truck . Until Nesnick had started the
practice of riding double no one had been riding double . In conclusion , Robuck's
-story is inconsistent with the theory of the case that Respondent was trying to dis-
,criminate against Nesnick by requiring him to ride double. He had never ridden
double with a driver other than Kerns . If Robuck were to be credited , Respondent
-was trying to get him to ride with Kerns. Apparently Nesnick would then be free
to ride alone and get his full pay. He would not be discriminated against and
Robuck refused the Kern 's assignment . Accordingly I do not credit Robuck's state-
ment that Maxwell was trying to separate Kerns from Nesnick's union influence.
Under the above facts , I find that the General Counsel has not established by a
preponderance of the evidence that Kerns was engaging in union activities, that
Respondent had knowledge of it , and that Respondent discharged him in order to
discourage membership in the Teamsters as alleged in the complaint . Rather the
weight of the evidence appears to show that Respondent discharged Kerns for failure
to obey its instructions with respect to the work repair on his tractor . I will rec-
ommend that the allegation in the complaint as to Kerns be dismissed.
Additional Allegations of Independent Violation of Section 8 (a) (1)
In his brief, the General Counsel urges the finding ' of independent violation of
'Section 8 (a) (1) of the Act on promises of benefit made by Stainton at both meet-
ings of the employees and by an alleged offer by Stewart to make Nesnick a super-
-visor in order to remove him from the unit.
As I have already found, the General Counsel has not established that there
was a meeting after knowledge of Teamsters activity, other than that of July 10.
There was a meeting or meetings before the Teamsters arrived on the scene at
-which Respondent had discussed certain benefits with the line drivers. Stainton also
admits mentioning certain things in the July 10 meeting as set out above, which
could be interpreted as merely a report on a previous meeting held before the
Teamsters came in. But this is too vague to satisfy the burden of proof that
Respondent was offering certain benefits in order to induce the employees to with-
draw from the Teamsters. In any event, the order in the case will require the post-
ing of a notice that Respondent will cease and desist from interfering with, coerc-
ing, or restraining employees in the exercise of their Section 7 rights. I cannot,
from this record, be more precise.
The final allegation of a violation of Section 8(a) (1) is dependent upon the
testimony of Nesnick that he was offered Hughes ' dispatcher job after the Team-
sters demand for recognition was pending in an attempt to remove him from the
bargaining unit and 'divert his support from the Teamsters . Nesnick's testimony
in this respect is not credited . This credibility determination is based upon his
demeanor while testifying . His general unreliability is noted elsewhere in this
Decision . Accordingly, I will recommend that this allegation in the complaint be
,dismissed.
IV. THE REMEDY
- It having been found that Respondent violated Section 8(a)(1) and (3) of the
Act, and in order to effectuate the policies of the Act, it will be recommended
ADOR CORPORATION 1053
that it offer to reinstate Edward M. Nesnick with backpay computed in accord-
ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716, and that it post an appropriate
notice. The nature of the unfair labor practices is such that a broad cease-and-
desist order appears warranted. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d, 532, 536
(C.A. 4).
It having been found that Respondent did not violate Section 8(a)(1) and (3)
of the Act as to certain particulars, it will be recommended that these portions of
the complaint be dismissed.
Accordingly on the basis of the foregoing findings and conclusions and on the
entire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the
following:
RECOMMENDED ORDER
A. Respondent Ador Corporation, its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
( a) Discriminating against any employee in regard to the hire or tenure or
terms or conditions of employment to discourage membership in or activities on
behalf of General Truck Drivers, Warehousemen & Helpers Union Local 235,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization.
(b) Interrogating or threatening employees as to their union membership or
activities, discriminating against them, or threatening to do so, for engaging in
concerted activity for mutual air or protection or in any other manner interfer-
ing with, restraining, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Offer to reinstate Edward M. Nesnick to his former or substantially equiv-
alent position without prejudice to his seniority or other rights and privileges, and
make him whole in the manner described in the portion of the Trial Examiner's
Decision entitled "The Remedy" for any loss of earnings suffered by reason of
the discrimination against him.
(b) Notify Edward M. Nesnick if he is serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Preserve and make available to the Board or its agents, upon request, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amount of backpay due under the terms hereof.
(d) Post at its premises at Los Angeles, California, copies of the, attached notice
marked "Appendix." 9 Copies of such notice to be furnished by the Regional Direc-
tor for the Region 21 after being duly signed by an authorized representative of
Respondent, shall be posted immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are ' not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Region 21, in writing, within 20 days
from the date of the receipt of this Decision, what steps the Respondent has taken
to comply herewith.10
B. In all other respects the complaint is dismissed.
' In the event that this Recommended Order is adopted by the Board, the words "an
Order" shall be substituted for "a Recommended Order of a Trial Examiner" in the notice.
In the further event that the Board's Order be enforced `by a decree of a United States
Court of Appeals the words "a Decree of the United States Court of Appeals Enforcing"
shall be inserted immediately preceding "an Order."
10 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read, "Notify said Regional Director, in writing , within 10 days from
the date of this Order; what steps the Respondent has taken to comply herewith."