Alan Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 12 (N.L.R.B. 1990)

12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alan Motor Lines, Inc. and Local 469, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO.
Case 22-CA-15278 '
March 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 3, 1989, Administrative Law Judge
D. Barry Morris 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, findings,' and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded, inter alia, that the Re-
spondent did not unlawfully refuse to rehire em-
ployee Thomas Furman about October 5, 1987.2
The judge found that the General Counsel had es-
tablished a prima facie case that Furman's union
activity was a motivating factor in the Respond-
ent's decision not to rehire him. Nevertheless, the
judge found that the Respondent had satisfied its
burden of demonstrating that the same action
would have been taken in the absence of the pro-
tected conduct. The General Counsel has excepted
to the judge's finding, contending, inter alia, that
the judge erred in finding that the Respondent had
rebutted the prima facie case. We find merit in this
exception.3
Nicholas Gaudio, the Respondent's president,
testified that he did not rehire Furman because
Furman had quit and because of vulgarities
Furman used during a September 30 meeting.4
Gaudio, however, later admitted in his testimony
that Furman's vulgarities were not serious enough
to cause Gaudio to refuse to rehire him. Gaudio
also testified that Furman's vulgarities were not
themselves a sufficient reason to terminate Furman
' In sec II,B,2 of his decision , the judge incorrectly stated that em-
ployee Furman met with Union President Potter on September 4, rather
than on October 4. We correct this errol,
2 All dates are in 1987 unless otherwise indicated
3 The General Counsel also has excepted to the judge's failure to find
an additional threat allegedly made by Gaudio to Furman and overheard
by employee DiGangi dung the September 30 meeting. We find it un-
necessary to pass on the General Counsel 's exception because the finding
of such an additional violation would be cumulative and would not affect
the remedy.
4 The judge found, and we agree, that Furman quit his employment
during this meeting.
and that other employees frequently used vulgar
language at work. Thus, Gaudio's testimony does
not clearly establish that Furman's vulgar language
played a significant role in Gaudio's decision not to
rehire Furman.
We further agree with the General Counsel that
Gaudio's remaining asserted reason for refusing to
rehire Furman-that he had quit on September
30-is insufficient to rebut the prima facie case of
discrimination. Gaudio repeatedly demonstrated his
antiunion animus by his various statements and
threats to employees. The credited evidence also
reveals the following: that by October 5, Gaudio
knew Furman was the "leader" behind the move to
organize the Respondent's employees; that, after
learning of Furman's role in organizing the em-
ployees, Gaudio referred to Furman as "trouble"
and a "troublemaker"; and that once the Respond-
ent's employees returned to work, Gaudio threat-
ened employees that if they voted for the Union
they would "end up just like Tommy Furman, with
no job at all." We also note that the record con-
tains no evidence that the Respondent had a policy
or practice of refusing to rehire employees who re-
signed and the Respondent stipulated that Furman's
work performance was not in issue. Finally, we
note that although the credited evidence establishes
that Gaudio had decided to take some kind of dis-
ciplinary action against Furman for a motor vehi-
cle incident that Furman failed to report, Gaudio
did not indicate what type of disciplinary action he
intended to impose and did not rely on that inci-
dent in refusing to rehire Furman.
Contrary to our dissenting colleague's conten-
tion, we are not discounting the judge's credibility
resolutions. In our view, the judge simply failed to
assess properly the significance of all the evidence
as credited by him in determining whether the Re-
spondent had overcome what the judge himself
had found was a prima facie case of discriminatory
treatment established by the General Counsel. In
this regard the judge's credibility resolutions estab-
lish that Furman-was characterized as a "trouble-
maker" because of his union activities and that Re-
spondent's president Gaudio had threatened other
employees with job loss if they voted for the
Union, i.e., that they would "end up just like
Tommy Furman."
We decline to join our colleague in treating, as a
credibility resolution, the judge's acceptance of
Gaudio's bare claim that he refused to rehire
Furman because the latter had earlier quit and be-
cause of Furman's use of vulgar language. Gaudio's
testimony in this regard is little more than an ipse
dixit that the Respondent's motive for refusing to
rehire Furman was lawful. This testimony is at
298 NLRB No. 3
ALAN MOTOR LINES 13
odds with his admission that he would not have
discharged Furman for those same vulgarities and
it is not supported by anything Gaudio claimed to
have said during the quitting episode. The persua-
siveness of this bare claim is to be judged under the
standards set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 445 U.S. 989 (1982), not Standard Dry Wall
Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We find that the Respondent has
failed to meet its burden in this regard.
Thus, the Respondent has failed to establish by a
preponderance of the evidence that its refusal to
rehire Furman was based on a legitimate nondis-
criminatory reason. The Respondent has therefore
failed to meet its burden under Wright Line and,
accordingly, we conclude that the Respondent vio-
lated Section 8(a)(3) and (1) by refusing to rehire
Furman about October 5, 1987.
AMENDED REMEDY
Having found that the Respondent unlawfully re-
fused to rehire Thomas Furman about October 5,
1987, we will order the Respondent to offer
Furman immediate and full reinstatement to his
former position or, if such position no longer exists,
to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any
loss of pay or other benefits he may have suffered
by reason of the discrimination against him in the
manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). We will also order the Respondent to
remove from its files any reference to its unlawful
refusal to rehire Furman and to notify him in writ-
ing that this has been done and that the refusal to
rehire will not be used against him in any way.
ORDER
The National Labor Relations Board orders that
the Respondent, Alan Motor Lines, Inc., Rahway,
New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to rehire or otherwise discriminating
against any employee for engaging in union activi-
ty.
(b) Coercively interrogating any employee about
union support or union activities, threatening any
employee with discharge or plant closure because
of union activities, requiring any employee to dis-
claim a desire to be represented by a union of his
or her choice, and stating to any; employee that it
would never allow a union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Thomas Furman immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and make
him whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
him, in the manner set forth in the amended
remedy section of this decision.
(b) Remove from its files any reference to the
unlawful refusal to rehire Thomas Furman and
notify him in writing that this has been done and
that the refusal to rehire 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 copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) 'Post at its Rahway, New Jersey facility
copies of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 22, after being signed
by the Respondent'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 Respondent
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 Respondent has taken to comply.
MEMBER DEVANEY, dissenting in part.
I do not agree with my colleagues' willingness to
discount the judge's credibility resolutions and
their consequent finding that the Respondent un-
lawfully refused to rehire Thomas Furman because
of his union activities. I recognize that this is a
close case on the merits. However, the Board did
not observe the witnesses' testimony and, in my
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the 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 "
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mind, the record evidence is not sufficient to justi-
fy reversing the judge.
The Respondent's president, Nicholas Gaudio,
has been with the Company for over 40 years.
Gaudio testified that, prior to September 30, 1987,
he had received complaints about a driving inci-
dent involving Furman from both the New Jersey
Motor Truck Association and a motorist who con-
tacted him directly. Gaudio met with his insurance
company and testified, without contradiction, that
a decision was made to take some type of discipli-
nary action against Furman.
The judge credited Gaudio's version of the Sep-
tember 30 meeting with Furman at which Furman
hurled obscenities at Gaudio and at which Furman
voluntarily terminated his employment. The major-
ity does not quarrel with these findings. Thereafter,
Gaudio testified that he refused to rehire Furman
because Furman had quit and because "I was never
called down like I was called down by Mr.
[Furman], by any man in forty some odd years that
I been [sic] doing what I've been doing." Although
Gaudio testified that Furman's vulgarities were not
in themselves a reason to refuse to rehire Furman,
Gaudio asserted that Furman's use of language, in-
cluding calling him a "son of a bitch" and a
"mother fucker," affected him terribly because he
had just lost his mother, and that he was "relieved"
Furman had quit.
It is axiomatic that the Board's established policy
is not to overrule an administrative law judge's
credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that
they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). This established policy recognizes that many
of the cases we are called on to decide present con-
flicting testimony and the responsibility for resolv-
ing such credibility disputes belongs to the judge in
the first instance. See, e.g., NLRB v. Walton Mfg.
Co., 369 U.S. 404, 408 (1962), and the cases cited
therein. In this case, the judge observed the wit-
nesses first hand, expressly relied on their demean-
or while testifying, and specifically credited Gau-
dio's nondiscriminatory explanation for why he re-
fused to rehire Furman. The clear preponderance
of the evidence in this case does not convince me
that the judge was incorrect.
In this regard, although Gaudio did not clearly
articulate his reasons for refusing to rehire Furman
until he testified at the hearing, this fact alone does
not justify reversing the judge. The judge credited
Gaudio's explanation and, by reversing the judge,
the majority reverses his credibility resolutions.
Furthermore, Gaudio's explanation is at least par-
tially supported by the testimony of Potter, the
Union's president and business representative.
Potter testified that on October 5, when he asked
why Gaudio would not take Furman back, Gaudio
said that it was because Furman had quit and was a
"troublemaker."' Thus, Gaudio's testimony is sup-
ported by his prior reference to Furman having
quit and therefore cannot be said to be either
"bare" or "no more than ipse dixit."
Accordingly, contrary to my colleagues, I would
adopt the judge's conclusion that the Respondent
did not violate the Act by refusing to rehire
Furman.
i To be sure, Gaudio's references to Furman as a "troublemaker" or
"trouble" reasonably imply an unlawful motive for Gaudio's refusal to
rehire him. The judge reached this same conclusion when he found that
the General Counsel had established a prima facie case. An analysis
under Wright Line, supra, however, does not end there. It is necessary to
go on and examine the reasons the Respondent offered for its action. The
judge did so, credited the reasons offered by the Respondent , and found
the Respondent had rebutted the prima facie case.
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 National Labor Relations Act
and has ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to rehire or otherwise dis-
criminate against any employee for engaging in
union activity.
WE WILL NOT coercively interrogate any em-
ployee about union support or union activities,
threaten any employee with discharge or plant clo-
sure because of union activities, require any em-
ployee to disclaim a desire to be represented by a
union of his or her choice, and tell any employee
that we would never allow a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ALAN MOTOR LINES 15
WE WILL offer Thomas Furman immediate and
full reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from our refusal to rehire
him, less any net interim earnings, plus interest.,
WE WILL remove from our files any reference to
our unlawful refusal to rehire Thomas Furman and
notify him in writing that this has been done and
that our refusal to rehire him will not be used
against him in any way.
ALAN MOTOR LINES, INC.
Bernard S. Mintz, Esq., for the General Counsel.
E. Patrick McDermott, Esq. (Gerald L. - Dorf P. C), of
Rahway, New Jersey , for the Respondent.
DECISION
STATEMENT OF THE,CASE
D. BARRY MORRIS, Administrative Law Judge. This
case was heard before me in Newark, New Jersey, on
June 9 and 10, 1988 . Upon a charge filed on October 5,
1987 ,1 a complaint was issued on November 19 and
amended at the hearing alleging that Alan Motor Lines,
Inc. (Respondent) violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). Respondent
filed an answer denying the commission of the alleged
unfair labor practices.
The parties were given full opportunity to participate,
produce evidence , examine and cross-examine witnesses,
argue orally and file briefs. Briefs were filed by the Gen-
eral Counsel and by the Respondent.
On the entire record of the case,2 including my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of
business in Rahway,, New Jersey, is engaged in the inter-
state and intrastate transportation of freight . Respondent
admits , and I so find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. In addition, Respondent admits , and I so
fmd, that Local 469, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO (Local 469 or the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.
I All dates refer to 1987 unless otherwise specified.
2 Certain errors in the transcript have been noted and corrected.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues are:
1. Did Respondent threaten to discharge and unlawful-
ly discharge its employee , Thomas Furman?
2. Did Respondent threaten its employees with dis-
charge if they supported Local 469, interrogate its em-
ployees concerning their activities on behalf of Local 469
and condition reinstatement of striking employees on
their agreeing to sign a statement disclaiming their desire
to be represented by Local 469?
B. The Facts
1. Meeting of September 30
Nicholas Gaudio, president of Respondent, testified
that he called Thomas Furman to a meeting on Septem-
ber 30 to discuss a traffic incident. Thee incident involved
Furman allegedly running someone off the road and
Gaudio having received both correspondence concerning
this from the New Jersey Motor Trucking Association
and having been called by someone who said that he was
"almost killed" in the incident . Furman became very
upset over the allegation and stated that Gaudio should
"stand behind him." Gaudio testified that Furman called
him a "son of a bitch" and "mother f " and since he
had just lost his mother , the statement "[a]ffected me ter-
ribly." Furman believed that Gaudio should not have
even questioned him concerning the incident and Gaudio
testified that Furman said "I don't need this job. I don't
have to be here. I'm going to look for something else."
Saying that, Furman "opened the door , ran out, slammed
the door and ran down to his automobile." Gaudio
denied that he said anything to Furman about his at-
tempts to bring in the union and he denied that he had
any knowledge as of that date that Local 469 was trying
to organize the employees.
Furman testified that he met with Gaudio on Septem-
ber 30 at which time Gaudio told him that "he didn't
want me driving." Furman stated that Gaudio handed
him a letter from the Trucking Association concerning
an incident which occurred on September 21 and told
him that he had been at a meeting where it was men-
tioned that disciplinary action was being recommended.
Furman testified that there was a heated exchange in
which vulgarities were used and that he "expected to be
supported by Mr. Gaudio." Furman also testified that he
said if "I wasn't going to receive what I felt was support
and loyalty that I might start looking elsewhere for an-
other job." Furman testified that Gaudio said that there
was "no work for me the next day" and as he was going
out the door, Gaudio said "if you try to bring a union in
here, I'll fire you."
2. Contacting the Union
Furman had once been a member of Local 469 and on
September 28 he contacted Fred Potter, president of the
Union , and set up a meeting to discuss representation.
The meeting was scheduled for October 1 at the Park-
side Inn in Linden, New Jersey. Potter attended the
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting on behalf of the Union and the employees who
attended the meeting were Furman, DiGangi, Giannotto,
Brewer, Hickson, Clark, and Varnado. All the employees
present at the meeting signed authorization cards at that
time. In addition, Furman was given two additional
cards to distribute.
Richard DiGangi credibly testified that on October 2,
while he was delivering a load, he received a call from
Gaudio at which time Gaudio told him:
[H]e had heard something about the union and I
was the leader of it. He asked me if I was the leader
and I told him no, we were all together, and he said
who is all of us and I said all of the guys.... He
asked me who the leader was and I said there was
no leader at the time. And he didn't say anything
about Tommy being the leader, so I just told him
there was no leader, we were just together. And
then he asked me if I had signed a card saying I
was in the union, and I asked why, and he said,
well, whoever signed a card was being . . . termi-
nated.
Later that day DiGangi called Furman and asked to
meet him. Furman met with DiGangi, Brewer, Clark,
and Giannotto that afternoon outside of Respondent's fa-
cility and discussed the contents of the Gaudio-Di-
Gangi conversation. Furman told the employees that he
would try to contact Potter and let him know what hap-
pened. As a consequence, Furman met with Potter on
September 4 and both of them agreed that the following
morning they would contact Gaudio and request recog-
nition, and, if Gaudio refused to recognize the Union,
they would set up a picket line.
3. Picketing
On October 5 the employees assembled outside of the
plant and began picketing. Potter approached Gaudio
and Gaudio said that all of the employees except for
Furman could return to work if they so desired. Con-
cerning Furman, Gaudio said:
[H]e quit his job. He didn't want to work here any-
more. I'm not going to have him work in here. I
don't want him on the property. He's a troublemak-
er. I don't need a troublemaker here. And, he's
trouble, I just don't want him around here.
The picketing continued until October 8. On that day
Potter handed a letter to Gaudio which stated that the
employees were offering to return to work uncondition-
ally. Gaudio read the letter, returned it to Potter, and
said "I'm not taking this from you. I'm not going to rec-
ognize the union in any manner. As far as I'm con-
cerned, there is no union." Gaudio told Potter that,
except for Furman, he would be willing to speak to each
of the employees individually.
The employees then spoke to Gaudio without Potter
being present. Giannotto credibly testified that Gaudio
said "You can come back. You have to sign a form
saying that the union's not coming in here." Brewer cor-
roborated this testimony and also testified that Gaudio
told the employees that Furman could not come back to
work because "he had been trouble, that supposedly he
had some kind of motor vehicle paper work stating that"
and that was the "reason why he was letting him go."
Brewer also testified that Gaudio explained that Furman
was a "troublemaker" because "he was organizing this
union activity."
Potter testified that on October 9, except for Furman,
everyone who wanted to work was permitted to by Re-
spondent. In addition, the employees were not in fact re-
quired to sign a statement that they would not join the
Union.
4. Events subsequent to October 9
DiGangi credibly testified that on several occasions
after October 9 Gaudio asked him to talk to the other
drivers to tell them to forget about the Union. In one of
these conversations Gaudio told him "there would never
be a union in there and he would close the . . . place
down before there was a union ." During one conversa-
tion Gaudio also told DiGangi "tell the guys if they vote
for the union they'd end up just like Tommy Furman,
with no job at all."
A representation election was held on November 20,
which the Union lost. The Union did not file objections
to the conduct of the election.
C. Discussion and Conclusion
1. Thomas Furman
On September 24 the executive director of the New
Jersey Motor Truck Association wrote to Gaudio advis-
ing him that on September 21 the Association received a
complaint from a motorist that one of Respondent's driv-
ers cut him off and subsequently attempted to force him
from the road. In addition, Gaudio credibly testified that
someone called him and was "very excited and told me
that he had been run off the road" and that "he was
almost killed." Gaudio ascertained that the truck in-
volved was the one being driven by Furman and sched-
uled a meeting with Furman on September 30.
Gaudio and Furman met on September 30, at which
time Furman became upset because he thought that
Gaudio should support him instead of accepting the ver-
sion of the motorist. I credit Gaudio's testimony that
Furman began using vulgarity towards Gaudio and
called him "a son of a bitch" and "mother f ."
Gaudio testified that the statements affected him "terri-
bly" especially since he had just lost his mother. I fur-
ther credit Gaudio's testimony that Furman said "I don't
need this job," "I'm going to look for something else,"
and then ran out, slammed the door, and ran down to his
automobile. Furman conceded in his testimony that
during this conversation he told Gaudio "if I wasn't
going to receive support in that issue that I might look
elsewhere for work." While Furman testified that as he
was leaving, Gaudio said "if you try to bring a union in
here, I'll fire you," Gaudio denied making such a state-
ment. I find that General Counsel has not shown by a
preponderance of the evidence that a statement concern-
ing the Union was made at this time.
ALAN MOTOR LINES 17
The complaint alleges that on September 30 Gaudio
threatened Furman with discharge if he supported Local
469 and laid off Furman because of his activities in sup-
port of the Union. I find that it has not been shown that
Gaudio had any knowledge of Furman's union activities
as of September 30.3 In addition, I credit Gaudio's ver-
sion of the events on that day and find that Furman left
the job because he was upset that Gaudio would not sup-
port, him in connection with the cutting-off incident on
September 21. Accordingly, paragraphs 8(a), and 9 of the
complaint are dismissed.
2. October 2 threats
Seven of the employees met with Potter on October 1,
at which time they signed authorization cards. I credit
DiGangi's testimony that on October 2 he had a conver-
sation with Gaudio during which time Gaudio told him
that he had heard something about the Union and asked
him if he was the leader of it. Gaudio then asked Di-
Gangi whether he had signed a union authorization card
and told him that whoever signed a card would be termi-
nated. Anthony Giannotto similarly testified that on Oc-
tober 2 he had a conversation with Gaudio, at which
time Gaudio told him "I hear you signed to get a union
in here." After Giannotto answered in the affirmative,
Gaudio replied, "No, no, we don't do that here. You're
fired." I credit the testimony of DiGangi and Giannotto
and fmd that on October 2 Gaudio threatened employees
with discharge if they supported Local 469 and on the
same day interrogated employees concerning their activi-
ties on behalf of the Union.
3. October 5 termination of Furman
The complaint alleges that on October 5 Respondent
terminated Furman. I have already found that Furman
quit his employment on September 30 because he
thought that Gaudio was not supporting him in connec-
tion with the traffic incident. Potter testified that on Oc-
tober 5 Gaudio said that, except for Furman, he would
put all the employees back to work. With respect to
Furman, however, Gaudio said "he was trouble and he
didn't want him [on] the property. He didn't want him
working for him." Similarly, I have credited Brewer's
testimony that on October 5 Gaudio said that Furman
could not return to work because "he had been trouble,
that supposedly he had some kind of motor vehicle paper
work stating that" and that "was the reason why he was
letting him go." Brewer also testified that Gaudio called
Furman a "troublemaker" because he was "organizing
this union activity." When asked why he would not
rehire Furman, Gaudio testified "because he quit his job.
He never showed into work on Thursday or Friday and
I assumed he was serious about quitting his job. And
... that's one of the reasons I felt, plus the fact that I
8 Furman testified that on September 28 and 29 he spoke to DiGangi
about the Union in the drivers' room. He also testified that John Long,
the dispatcher, was sitting in the adjacent room. Furman testified, howev-
er, that he did not know whether Long heard the conversation and Long
was not called as a witness Respondent has denied that Long is either a
supervisor or agent within the meaning of the Act, and the General
Counsel has not shown to the contrary. Moreover, no showing has been
made that Long heard the conversation.
was never called down like I was called down by Mr.
Furman, by any man in forty some odd years that I
[have] been doing what I've been doing."
The question remains whether Respondent refused to
rehire Furman because of his activity on behalf of Local
469. Under Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (lst Cir. 1981), cert. denied 445 U.S.
989, the Board requires that the General Counsel make a
prima, facie showing sufficient to support the inference
that protected conduct was a motivating factor in the
employer's decision.'Once this is established, the burden
shifts to the employer to demonstrate that the "same
action would have taken place even the absence of the
protected conduct." I believe that the General Counsel
has made a prima facie showing that protected conduct
was a motivating factor in Respondent's decision not to
rehire Furman. By October 2 Gaudio had become aware
of some of the employees' union activities. While Gaudio
had not yet known that Furman was the main force
behind the Union, as indicated by his questioning Di-
Gangi whether he was the leader, by October 5 it is ap-
parent that Gaudio had determined that in fact Furman
was the principal person responsible for bringing in the
Union. Thus, in testimony which I have credited,
Brewer testified that on October 5 Gaudio said he would
not rehire Furman because he was a "troublemaker"
since he was "organizing this union activity." There is
no question concerning Gaudio's attitude towards having
a union . DiGangi testified that when he was hired he
was told by Gaudio "there was no union . . . he had no
use for one." Similarly, Brewer testified that when he
was hired Gaudio said "this is not a union shop" and it
would "never be a union shop." I thus find that the Gen-
eral Counsel has made a prima facie showing that one of
the factors in Respondent's decision not to rehire
Furman was Gaudio's discovery sometime between Oc-
tober 2 and 5 that Furman was the one primarily respon-
sible for trying to bring in the Union.
I also find, however, that Respondent has satisfied its
burden of demonstrating that the "same action would
have taken place even in the absence of the protected
conduct." On September 30, when Gaudio met with
Furman, Gaudio had already received the letter from the
New Jersey Motor Truck Association concerning the
September 21 incident and he had also received a tele-
phone call from a motorist complaining that he had been
"run off the road" and was "almost killed." In addition,
Gaudio had been at a meeting concerning the incident
and disciplinary action was being recommended. Furman
became upset that Gaudio was not supporting him and
began using vulgarities against Gaudio. Gaudio testified
that he had just lost his mother and the vulgarities were
of such a nature that they affected him "terribly."
Gaudio testified that he did not rehire Furman because
Furman quit and because of the vulgarities. As Gaudio
testified, he was never "called down like II was called
down by Mr. Furman" in approximately 40 years of
being in business. Accordingly, I fmd that Respondent
has satisfied its burden under Wright Line and, therefore,
the allegation is dismissed.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. October 8 reinstatement
The complaint alleges that on October 8 Gaudio con-
ditioned the reinstatement of the striking employees on
their,. agreeing to sign a statement disclaiming a desire to
be represented by Local 469 . I have credited Giannotto's
testimony that on October 8 Gaudio said , "You can
come back . You have to sign a form that the union's not
coming in here ." This testimony was corroborated by
Brewer . While, in fact, Gaudio did not require the em-
ployees to sign such a form, I fmd that he made the
statement that the employees would be required to sign a
form disclaiming a desire to be represented by Local 469.
5. Respondent 's statements after October 9
At the hearing , the complaint was amended to allege
that at various times between October 9 and November
20 Gaudio threatened his employees with discharge or
closure of its facility if they supported Local 469 and
stated to his employees that Respondent would never
allow its employees to be represented by the Union. I
have credited DiGangi's testimony that during this time
period Gaudio told him "there would never be a union
in there" and that he would "close the . . . place down
before there was a union in there." In addition, I have
credited DiGangi 's testimony that during the same time
period Gaudio told him "tell the guys if they vote for
the union , they'd end up just like Tommy Furman, with
no job at all." This credited testimony supports para-
graphs 8(d) and (e) of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employees concerning their activi-
ties on behalf of Local 469, by threatening its employees
with discharge and plant closure if they supported Local
469, by stating to its employees that it would never
allow a union and by conditioning the reinstatement of
striking employees on their agreeing to disclaim a desire
to be represented by Local 469, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]