Armored Transport, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 447 (N.L.R.B. 1980)

ARMORED TRANSPORT. INC.
Armored Transport, Inc. and Armored Car Workers
of America (Formerly known as Employees
Committee of Armored Transport, Inc.). Case
20-CA- 14909
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEILO
On July 31, 1980, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief,' and the General
Counsel filed a brief in answer to Respondent's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Armored
Transport, Inc., San Francisco, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
Respondent has requested oral argument This request is hereby
denied as the record, the exceptions, and the briefs adequalely present the
issues and the positions of the parties.
2 Member Jenkins would compute the interest due on backpay in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB No. I1 (1980)
DECISON
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me at San Francisco, California,
on March 27, 1980, pursuant to a complaint issued by the
Regional Director for Region 20,' and which was based
on a charge filed by Employees Committee of Armored
Transport, Inc., now known as Armored Car Workers of
America2 (herein called the Union), on October 10, and
i All dates herein refer to 1979 unless otherwise indicated
2 The Charging Party's name was amended to show the new name
under which the Board has certified it as the collective-hargaining repre-
sentative of Respondent's employees. In no other respect did the Charg-
ing Party change its identity.
252 NLRB No. 61
amended on October 16. The complaint alleges that Ar-
mored Transport, Inc. (herein called Respondent), has
engaged in certain violations of Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended (herein
called the Act).
Issues
The issue is whether or not Respondent temporarily
laid off 40 employees on October 10 in order to discour-
age them from engaging in conduct constituting mutual
aid or protection as described in Section 7 of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of both the General Counsel and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. JURISD)ICTION
Respondent admits it is a California corporation en-
gaged in the armored guard and messenger business and
having offices located throughout California including a
dispatching office in San Francisco. It further admits that
during the past year, in the course and conduct of its
business, it has sold services valued in excess of $50,000
to customers within California who are directly engaged
in interstate commerce. Accordingly, it admits, and I
find, that it is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and participants
As noted above Respondent is engaged in the armored
guard and messenger service business throughout Cali-
fornia. Its headquarters are in Los Angeles, but it has of-
fices in San Francisco and San Jose. Its San Jose em-
ployees are represented by a local of the Teamsters
Union out of its San Francisco employees at the time of
the incidents here in question were unrepresented. Prior
to the October incidents to be described, Respondent's
San Francisco manager was Jack Sherman. He reported
directly to Robert G. Irvin, Respondent's president in
Los Angeles. Sherman directed the work of approxi-
mately 40 drivers and messengers who serviced the San
Francisco and Oakland/East Bay accounts.
Sometime in March the employees established the or-
ganization which later became the Union. After electing
officers, they chose messenger-driver Walter Roberts as
their spokesman to deal with Sherman. Beginning in late
March and continuing sporadically throughout the
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
summer and fall Roberts and another employee, Brad
Lovesy, met with Sherman to discuss working condi-
tions. Topics which were covered included load times,
merit increases, and timecards. Another topic was a
wage increase which had been negotiated on behalf of
the San Jose driver messengers by the Teamsters Union.
At one point, according to Roberts, he asked Sherman to
grant the same wage increase to the San Francisco em-
ployees which had been negotiated at San Jose. Roberts
recalls Sherman saying he did not have the authority to
do that, but would transmit the committee's request to
President Irvin. Later, according to Roberts, Sherman
reported Irvin would not deal with the Committee and
had referred to it in belittling terms.
In early September two other employees, Thomas
Lane and Chris Rose, met with Sherman to again ask for
the 45-cent-per-hour increase which the San Jose em-
ployees had negotiated. They told Sherman they were
upset and would go to extremes in order to get the in-
crease. Sherman said he did not think the increase was
likely because the San Francisco office was not making
money. He did agree that he would discuss the request
with President Irvin but doubted that the increase was
feasible. 3 Those employees later told the others about
Sherman's reaction.
Later, Roberts became the Committee's chairman.
Sometime in September, after learning of President
Irvin's opposition to their requested wage increase, Rob-
erts and the other officers of the committee decided to
cease reporting to work earlier than required. It appears
from the undenied evidence that under Sherman's 2
years of management, though contrary to Respondent's
practice elsewhere in the State, the San Francisco driv-
ers had reported to work approximately 30 minutes
before their departure time. Respondent's statewide
policy was to have them report 15 minutes before depar-
ture, paying employees for that 15 minutes as the neces-
sary "load time." When Sherman observed the change,
he asked Roberts and others what they were doing. The
response was relatively uniform: "Because you won't
give us a wage increase, we are no longer going to give
you the extra 'free' 15 minutes." Sherman's reaction to
that response is not clear, but I have no doubt that he
transmitted the employees' attitude to President Irvin in
Los Angeles.
A few weeks went by during which Sherman posted a
notice to the effect that President Irvin intended to con-
duct a safety meeting at the San Francisco Racquet Club
on October 9; dinner was to be served.
The purpose of the Racquet Club dinner is unclear.
The employees were requested to sign their names at the
bottom of the notice to indicate their intention to attend.
The number of signatures was for ordering the number
of dinners required. Although it was styled as a "safety"
meeting it seems that at least one of its purposes was to
3 It appears that the San Francisco employees were already receiving 5
cents per hour more than its two competitors, Loomis and Brinks, both
of whose employees are union represented. It appears that the 45-cent
San Jose increase merely raised the San Jose figures to something close
to the San Francisco rates. In that circumstance it is not unreasonable or
Sherman to have said that an additional 45 cents on top of Respondent's
current San Francisco rate would be unreasonable.
honor an employee, Thomas Taylor, who had been
wounded while foiling an attempted holdup. However,
that purpose was not articulated. Thus, from the employ-
ees' standpoint it appeared simply to be a safety meeting.
Consistent with their earlier decision to stop giving free
load time to the Company, the employees, believing they
were not to be paid for attending the meeting, decided
not to do so. In fact, some of those who had originally
signed the notice scratched off their names. By October
8 it became apparent to Sherman that no one intended to
attend. Sherman asked Lane why and when Lane ex-
plained, Sherman responded, "But you can't do this to a
man like Bob Irvin!"
October 9 began as usual although during that morn-
ing the drivers were advised either by telephone or radio
that a mandatory employee meeting was to be conducted
that evening. Lane says that while he was on his route a
customer asked him if Respondent's drivers were strik-
ing. Puzzled, he called Sherman and asked him if the em-
ployees were going on strike. Sherman replied "no," Re-
spondent was "locking the employees out" and told
Lane not to pick up any deliveries which needed to be
made the following day. Other drivers were also told not
to pick up items which required delivery for the follow-
ing day.
That afternoon what has been described as two meet-
ings, and what was in reality one long meeting in which
much was repeated, occurred. It was conducted by
President Robert Irvin. While there is some dispute over
what was said, there is no dispute over the fact that he
gave Taylor the award and also told the employees that
the San Francisco facility was to be shut down for a
week. The employees testified that during the course of
explaining the shutdown, he advised it was intended to
serve as a "cooling off' period, for the employees had
been "rebellious and hot-headed." He also advised them
that he did not intend to give them the raise which they
had sought. He does not deny the above, but adds that
he told them the facility was suffering management prob-
lems and he was unhappy with the manner in which
Sherman had been operating. He told them the San
Francisco office had been losing money and changes
were required. There is no reason to doubt his testimony
here; in fact Sherman was relieved of his duties at that
time. He was replaced by James Irvin, one of President
Irvin's sons, though no announcement to that effect was
made to the employees. President Irvin told employees
that if they desired to resume working, to report on
Friday for an "evaluation."
On Friday, October 12, all of the regular full-time em-
ployees appeared. President Irvin met the group at the
first floor entry area and told them the paychecks had
not yet arrived. He asked them to wait. A few moments
later one of the drivers came downstairs with his pay-
check and showed it to the others. President Irvin had
temporarily absented himself to make a phone call. When
he returned, Roberts, acting as the leader, asked for the
remaining paychecks. Roberts recalls that Irvin respond-
ed, "When [you are] ready to come upstairs in an order-
ly manner and talk to [me] one at a time" Irvin would
give them their checks. Roberts replied the group would
448
ARMORED TRANSPORT, INC.
not do that, but said if the employees could all punch in,
Irvin could talk to them "on the clock" or else Irvin
could talk to him as the committee representative. Irvin
asked if he was Walter Roberts and when Roberts re-
plied he was, Irvin told him to get out. Roberts did so,
but the entire group followed him.
As the group was walking down the alley Irvin called,
"Wait a minute, fellas. I don't want to get in a legal
hassle. If you'll bring in your badges, your company
weapons and your uniforms, I will give you your
checks." Roberts told him he had not been told to bring
them in before and did not have the transportation home
to get them. Robert said Irvin told him to "shut up."
Roberts replied that he did not have to listen to that,
turned, and walked away; the rest of the group followed.
Irvin then decided he was obligated to deliver the pay-
checks and had them mailed (some by U.S. Postal Serv-
ice, others by messenger). Each paycheck was accompa-
nied by a letter offering "regret" over the "misunder-
standing" that morning. In the letter Irvin asserted he
had understood that those who did not wish to return to
work were bringing in their identification credentials and
uniforms. He said the group had insisted on getting the
checks without turning in those items and would permit
no discussion unless they punched the timeclock. He
concluded by saying Respondent intended to reopen on
October 16 and would take the action necessary to fill
any vacant positions. The letter went on to say that
those who wished to return to work should call on
Monday, October 15, to be assigned starting times. He
also said that those who did not wish to return could
bring in their uniforms, credentials, and other property
and receive their "final check."
Later that day two employees who had not arrived
with the group, Michael Johnson and Leonard Hender-
son, arrived at the office. As they obtained their checks
from Robert Irvin, he told them he had closed down the
place because "there was a couple of hot-heads out there
that were doing the whole show, show for all the em-
ployees; and as soon as this cooling-off period . . . was
over, things would start working right and [employees]
will start seeing his side of it."
As stated in the letter, work resumed on October 16,
though full resumption was not reached for a few more
days. 4
IV. ANALYSIS AND CONCLUSIONS
Based on the foregoing facts, it is clear that the Gener-
al Counsel has made out a prima facie case that President
Robert Irvin decided to temporarily close the San Fran-
cisco office as a result of his disenchantment with the
fact that the employees had banded together and had as-
serted collective rights. In addition, it seems that he
thought the shutdown would serve as a "cooling-off
period" which would result in the loss of some employ-
ees and also would give others time for their militancy to
diminish.
Respondent, however, argues that it had been faced
for some time with some business difficulties at San
4 Even during the shutdown some contracts were honored The record
does not show who performed that work
Francisco, laying the blame at the feet of Manager Jack
Sherman. It asserts, without specific factual support
(though the General Counsel adduced no contrary evi-
dence), that the facility was doing poorly, was losing
money, and was being badly managed. It points out that
Sherman was seeking accounts it could not service and
was also antagonizing employees. While Sherman may
have had his shortcomings and while Respondent may
well have been experiencing financial difficulties with
the operation, I am not persuaded by this defense.
It seems unlikely that a shutdown of any length would
be an efficient way to end the losses which Respondent
says it was then incurring. A more likely response would
be to continue operation simultaneously modifying routes
and other cost items.
Moreover, there is the testimony that Sherman told
one employee the shutdown was a "lockout"-though
that might simply be the remark of a disgruntled man-
ager in the process of being removed. However, I doubt
that possibility since one of Respondent's customers, the
manager of the Pleasant Hill Standard Brands Paint Co.,
store during the shutdown telephoned Respondent's
office to find out why his receipts had not been picked
up. That individual, George Hooper, said he asked for
the person in charge, though he does not believe a name
was mentioned, and the person to whom he spoke told
him there would be no money pickups because of "a
labor dispute." These two references-lockout and labor
dispute-clearly undercut Respondent's defense that the
shutdown was to give itself the opportunity to straighten
out managerial snafus.
Respondent's action here does not have the appear-
ance of a business decision and I do not believe that it
was. Instead it was as the General Counsel alleges, an at-
tempt to deter employees from exercising their Section 7
right to bend together for their mutual aid and protec-
tion by forming their own independent union. Certainly
Robert Irvin's treatment of Union Chairman Roberts was
backhanded and rude and can easily be seen as an at-
tempt to disparage the union leader.
Accordingly, I conclude that the General Counsel has
proven that Respondent's decision to shut down its facili-
ty as of October 10, 1979, for a period of approximately
2 weeks was motivated by reasons prohibited by Section
8(a)(3) and (I) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act by laying off its entire work force for a
period of approximately 2 weeks, I shall recommend that
it be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli-
cies of the Act. The affirmative action shall include an
order requiring Respondent to immediately make whole
its employees for loss of earnings as a result of its dis-
criminatory decision to temporarily close the San Fran-
cisco office. Interest on that backpay shall be computed
as set forth in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1950).
449
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Based on the foregoing findings of fact, and the record
as a whole, I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent Armored Transport, Inc., is an employ-
er engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Armored Car Workers of America (formerly known
as Employees Committee of Armored Transport, Inc.) is
a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent as of October 10, 1979, violated Section
8(a)(3) and (1) of the Act by temporarily laying off the
following employees:
Wayne Berger
Kevin Bouey
Isaac Brouch
Jerry Buckley
Alvin Chu
Michael Cissell
Jim Clancy
Kenneth Farris
Tom Gallegos
Larry Giovacchini
Leonard Henderson
Neal Hewitt
Rex Ingram
Michael Johnson
John Joy
Mark Kastilahn
Alan Kazarian
Jim Keller
Thomas Lane
Vernon Malden
Brian McGill
Bill Pendleton
Michael Roberts
Walt Roberts
Chris Rose
Rodney Schroeder
Richard Shepard
Pete Sikora
Dan Simone
Michael Smith
Williard Smith
Mark Stokes
Thomas Taylor
Ray Tomasello
Barvo Torres
Robert Van Dis
Gary Walkley
Mike Winslow
Jon Yee
Charles Zielke
Upon the basis of the foregoing findings of fact, con-
clusions of law, and upon the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER 5
The Respondent, Armored Transport, Inc., its officers,
agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Laying off employees because they choose to exer-
cise their Section 7 right to engage in organizing them-
selves and forming a labor union for the purpose of bar-
gaining as a group and acting collectively for their
mutual aid or protection.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(a) Immediately make whole those employees listed in
paragraph 3 of the conclusions of law for lost earnings in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports and all other re-
cords and reports necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its San Francisco, California, facility, copies
of the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Director
for Region 20, after being duly signed by its representa-
tive, shall be posted immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the ords in the notice reading "Posted by
Order of the National Labor Relations Hoard" shall read "Posted Pursu-
anl to a Judgment of the United States Court of Appeals Enforcing an
Order of the Naltional l.abor Relations Board."
APPENDIX
No-ltCI To EsMPI.OYEES
PosT tl) BY ORDI)R OF HE
NATIONAI. LABOR RI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportunity
to present evidence, the National Labor Relations has
found that we violated the National Labor Relations Act
and we have been ordered to post this notice.
The Act gives all employees the following rights:
To orgnanize themselves
To form, join, or support unions
To bargain as a group through representatives
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity, except
to the extent that the employees' bargaining rep-
resentative and employer have a collective-bar-
gaining agreement which imposes a lawful re-
quirement that employees become union mem-
bers.
WE Wl. NOT lay off employees because they
choose to exercise the rights recited above, includ-
ing organizing themselves and forming a union such
as the Armored Car Workers of America or other-
wise acting collectively for their mutual aid or pro-
tection.
450
ARMORED TRANSPORT. INC
Wi wii.t NOT in any like or related manner re-
strain or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
Wt wit L make whole the following employees
for the work they lost due to our October 1979
layoff, including interest.
Wayne Berger
Kevin Bouey
Issac Brouch
Jerry Buckley
Alvin Chu
Michael Cissell
Jim Clancy
Kenneth Farris
Brian McGill
Bill Pendleton
Michael Roberts
Walt Roberts
Chris Rose
Rodney Schroeder
Richard Sheppard
Pete Sikora
Tom Gallegos
Larry Giovacchini
Leonard Henderson
Neal Hewitt
Rex Ingram
Michael Johnson
John Joy
Mark Kastilahn
Alan Kazarian
Jim Keller
Thomas Lane
Vernon Malden
Dan Simone
Michael Smith
Williard Smith
Mark Stokes
Thomas Taylor
Ray Tomasello
Barvo Torres
Robert Van Dis
Gary Walkley
Mike Winslow
Jon Yee
Charles Zielke
ARMORII) TRANSPORT, INC.
451