Big Buck Lumber

National Labor Relations Board - Board Decisions

Aug 13, 1979

244 N.L.R.B. 156 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welsch Lumber and Supply, Inc., d/b/a Big Buck
Lumber and General Chauffeurs, Sales Drivers and
Helpers Union, Local 179, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 13-
CA-17681
August 13, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On May 15, 1979, Administrative Law Judge Stan-
ley N. Ohlbaum issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as it Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Welsch Lumber and
Supply, Inc., d/b/a Big Buck Lumber, Mokena, Illi-
nois, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding' under the National Labor Relations Act, as
amended, 29 U.S.C. 151, et seq. (herein called the Act) was
heard before me in Chicago, Illinois, on March 9, 1979,
with all parties represented throughout by counsel, who
were afforded full opportunity to present evidence, argu-
ments, and post-trial briefs. After counsel for the General
Counsel presented the closing argument on the record, a
brief was received from counsel for Respondent by trans-
mission dated April 20, 1979, after an extension of time.
'Complaint issued by the Regional Director for Region 13 on July 31,
growing out of a charge filed by Charging Party Union on June 5 as
amended June 15. 1978.
The issues presented are whether Respondent, through
employee interrogation and threat, violated Section 8(a)(l)
of the Act.
Upon the entire record and my observations of the testi-
monial demeanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times Respondent has been and is an Illi-
nois corporation engaged in the retail sale, distribution. and
warehousing of homebuilding materials, at and from its fa-
cility at 9900 W. 191st Street, Mokena. Illinois. During its
business operations in the representative year immediately
preceding issuance of the complaint. Respondent sold at
retail and distributed from its aforesaid location, home-
building materials valued in excess of $500,000; and during
the same period, in and for its said business at said location.
Respondent purchased and received goods directly in inter-
state commerce from places outside of Illinois valued in
excess of $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2). (6), and (7) of the Act; and that at all of those
times Charging Party Union has been and is a labor organi-
zation as defined in Section 2(5) of the Act.
II. AI..EGED UNFAIR LABOR PRA('rI('ES
It is conceded that at all material times Robert Smith was
Respondent's assistant manager, as well as its agent and
supervisor as defined by the Act, acting on its behalf. Smith
was in charge of all of Respondent's 35 40 employees, in-
cluding the 5- 10 comprising its yard crew under a yard
supervisor.
At the hearing Smith conceded that Respondent was
aware of a unionizational campaign among its employees in
April through June 1978 and that Respondent was opposed
to the attempted unionization.
On April 26, 1978. during the union organizational cam-
paign. union representatives requested recognition and col-
lective bargaining on behalf of an alleged majority of Re-
spondent's unit employees. This recognition was requested
of Respondent's Assistant Manager Smith both orally and
in writing. Smith indicated he would have to take it up with
Respondent's General Manager Burr Manby. The union
representatives returned later in the day and spoke to Man-
by, who indicated he would provide them with a letter of
recognition the following morning.
The union representatives thereupon furnished Manby
and his wife with a list of unit (drivers and yardmen) em-
ployees who had purportedly signed union bargaining au-
thorizational designation cards which they exhibited.'
Six cards, not including any for yardmen Migliacio or McBride. There is
no indication that the promised recognitional letter was ever forthcoming.
To the contrary, the Union filed an election petition (Case 13-RC 14751)
with the Board on May 5. 1978 (GC Exh. 6lbl). The Union's July 5. 1978.
request for review of the Regional Director's June 21 dismissal of that peti-
tion was unresolved on the date of the instant trial (stipulation, GC Exh.
6{a]). but was subsequently resolved by the Board's Order reversing that
dismissal (241 NLRB 639 (1979)).
244 NLRB No. 23
156
BIG BUCK LUMBER
Respondent's former yardman. Richard ("Ricky") A.
Migliacio, testified credibly that soon after Memorial Day
1978, while in the yard dispatch office or area with fellow-
yardman McBride, Assistant Manager Smith asked, "Are
these guys trying to get you in the union, too?" Migliacio
answered, "I really [don't] know anything about it." 3 Smith
responded. "There [is] going to be a lot of sorry people
when this is over."4
When Respondent's Assistant Manager Smith was called
as an adverse witness by the General Counsel, he denied
that he had discussed the Union with any employee in May
or June 1978. "as near as I can recall" and "not that I can
recall." However, he then, as well as later while testifying
for Respondent, conceded that he did indeed around the
end of May say to Migliacio, "Rick [Migliacio], is the union
trying to get to you?" Although Smith denies telling Miglia-
cio that "There are going to be a lot of sorry people." he
says he told this "privately" to Respondent's former yard
supervisor Art Andresen ("Andreson").
To the extent of inconsistency between the described tes-
timony of Migliacio and Smith, after closely observing and
comparing the testimonial demeanor of each of them on the
witness stand, I credit Migliacio in preference to Smith and
accept Migliacio's version of what Smith said on the occa-
sion in question.'
Insofar as Smith's query to Migliacio about the Union
"trying to get you in" or "trying to get to you" is concerned,
there is little doubt that such an inquiry interferes with,
restrains, and coerces employees in the unfettered exercise
of rights guaranteed them by Congress under the Act, as
has been pointed out in a plenitude of cases unnecessary to
here cite- Respondent urges that if, as it claims, Smith's
voice took a downward rather than an upward inflection
when the words in question were used, it did not constitute
interrogation but, rather, a mere declaratory remark by
Smith. I do not agree. To begin with, I credit Migliacio's
testimony, as I heard it at the trial, indicating that the
words in question took an upward inflection. Furthermore.
a question may be put even with a downward inflection.
Moreover, Smith's words came through as a question since
Migliacio answered them.6 Finally, even were Smith's
words to be considered a "remark" rather than a "ques-
tion," where an employer makes a remark to an employee,
concerning Union affiliation or activity, calculated to evoke
a response, and which remark had no legitimate purpose, it
cannot but have a tendency to be restraintful and coercive
vis-a-vis employees' exercise of their statutory rights to enter
upon or maintain union affiliations and to act collectively
without employer intrusion. Ace Manufacturing Co.. Inc.
t Cf. Bourne v. N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964).
4Migliacio was subsequently discharged for a reason not here claimed to
have been violative of the Act as was McBnde, who did not testify since he
was not locatable although General Counsel attempted to subpena him.
I Although I base this credibility resolution on my personal demeanor
observations as Administrative Law Judge here, it is also to be noted that
before conceding he said to Migliacio in late May or early June, "Rick. is the
union trying to get to ya Isicl," Smith initially wore that he did not speak of
the Union to any employee in May or June, then adding "as near as I can
recall" and "not that I can recall." It seems unlikely that Smith could have
had a memory flash on a matter like this within minutes.
6 Indeed, the nature of Migliacio's answer satisfies the Bourne (supra, fn. 3)
standard for unlawful interrogation.
Division of A-T-O Inc.. 235 NLRB 1023 (1978). This is
particularly true where. as here, the "remark" is unaccom-
panied by any assurance against reprisal (cf., e.g., Richard
Tischler Martin Bader and Donald Connellv, Sr.. a limited
partniership d/17/a Devan Gables Nursing Homne, Richard
Tischler, Martin Bader and Donald Connell', Sr., a limnited
partnership d/hba Devon Gables Lodge & Apartments., 237
NLRB 775 (1978))--indeed, here the direct contrary
through Smith's followup remark that "There [is] going to
be a lot of sorry people when this is over." Insofar as
Smith's followup remark about "a lot of sorry people" is
concerned, it was clearly threatening as well as restraintful
and coercive. For an employer to signal his employees in
the midst of a union campaign that they will be "sorry . . .
when this is over" is equivalent to saying to them that he
will make them regret their exercise of rights guaranteed
them by Congress under the Act. Coming as it did from one
in a position to make the threat good by turning their eco-
nomic faucet off, such a remark must be regarded as in
restraint and coercion of their exercise of those rights. Cf.,
e.g., N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575. 617-
20 (1969): N.L.R.B. v. Exchange Parts Company. 375 U.S.
405, 409-10 (1964): N.L.R.B. v. Federhush Co., Inc., 121
F.2d 954, 957 (2d Cir. 1941): Oak Manufacturing Compans.
141 NLRB 1323, 1325-26 (1963). It is. of course. unessen-
tial to employer interference, restraint, and coercion that
the precise form of possible reprisal be spelled out. Cf., e.g..
Richard Tischler, 237 NLRB 775 (1978); Alhertson Manu-
facturing Companv, 236 NLRB 663 (1978): The Anthonv L.
Jordan Health Center, 235 NLRB 1113 (1978);: The Good-
year Aerospace Corporation, 234 NLRB 539 (1978); Diocese
of Fort Wayne-South Bend, Inc., 230 NLRB 267 (1977):
Griffin Inns, 229 NLRB 199 (1977): Westons Shoppers City,
Inc., 217 NLRB 291 (1975).
It is accordingly, upon the entire record, found that the
complaint allegations in question (pars. V[al and [b]) have
been established by preponderating substantial credible
proof.
Upon the foregoing findings and the entire record, I state
the following:
CoNcI.USIONS OF LAW
1. Jurisdiction is properly asserted in his proceeding.
2. By engaging in the following acts, under the circum-
stances described and found in section III, supra, Respon-
dent has interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed them under
Section 7, and has thereby violated Section 8(a)(1) of the
Act:
(a) Interrogation of employees.
(b) Threatening employees with reprisals in the event of
unionization and attempts to bargain collectively.
3. The aforesaid unfair labor practices have affected, af-
fect. and unless permanently restrained and enjoined will
continue to affect, commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Respondent should be ordered to refrain from continuing
to violate the Act in the respects found and to post the
usual notice to employees to that effect.
157
I1('ISIONS O() NATIONAL. ILABOR RELATIONS BOARI)
I pon the basis of the foregoing findings of fact, conclu-
sions of law. and the entire record, and pursuant to Section
I0(c) of the Act. I hereby issue the following recommended
ORDER
The Respondent. Welsch Lumber and Supply. Inc..
doing business as Big Buck umber. Mokena. Illinois. its
officers, agents. successors, and assigns, shall.
1. Cease and desist from:
(a) Interrogating or attempting to elicit information from
its employees concerning their or other employees' union
membership. affiliations. views, sympathies, or activities, or
other protected, concerted activities, in interference with,
restraint, or coercion of their exercise of any right under the
National Labor Relations Act, as amended.
(b) Threatening. expressly or impliedly, any economic or
job-related reprisal, including cessation, cancellation, with-
drawal, removal, discontinuance, loss, or diminution of any
existing job-related economic benefit or working condition
or privilege. or threatening adverse alteration of job status
or other terms or conditions of employment. or any other
form of reprisal. for union adherence, support, voting, selec-
tion of a union as collective-bargaining representative, or in
the event of unionization.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization: to form, join, or assist any labor
organization; to bargain collectively through representa-
tives of their own choosing; to engage in concerted activi-
ties for the purposes of collective bargaining or other mu-
tual aid or protection; or to refrain from any and all such
activities, except to the extent that such right may be af-
fected by an agreement lawfully requiring membership in a
labor organization as a condition of employment, as autho-
rized in Section 8(a)(3) of the Act, as modified by the La-
bor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Post at its premises at 9900 W. 191st Street, Mokena.
Illinois 60448. copies of the notice attached hereto marked
"Appendix A."' Copies of said notice. on forms provided
by the Board's Regional Director for Region 13, after being
signed by Respondent's authorized representative, shall be
posted in said premises by Respondent immediately upon
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order which follows herein shall, as pro-
vided in Sec. 102.48 of those 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.
' In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the Notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
receipt thereof'and mlaintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered. defaced, or covered by any other material.
(hb) Notify said Regional Director in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply therewith.
APPENDIX
No'l t(l To EMPI.OYEtS
POSTEIL BY ORI)ER OF 'Ilte
NAIIONAI. LABOR RI.AIIONS BOARD
An Agency of the United States Government
After a hearing before the Administrative Law Judge. at
which all sides had the opportunity to present witnesses,
evidence and arguments. the decision has been announced
that we have violated the National Labor Relations Act.
The National I.abor Relations Board has ordered us to post
this notice and to do what it says.
As employees, the National Labor Relations Act gives
you these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
your own choosing
l'o act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL. Nor question or attempt to get information
from you in violation of the Act, concerning your
union membership, affiliation, sympathies, desires, ac-
tivities, or other rights or actions guaranteed you under
the National Labor Relations Act.
Wt Will.. NOI threaten or state to you that you will
be sorry for joining or staying in the Union, for trying
to unionize, or for exercising any of your rights under
the National Labor Relations Act; nor will we threaten
you in any way with any reprisal for so doing.
WE WiLL NOr in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
right to self-organization: to form, join, or assist any
labor organization; to bargain collectively through rep-
resentatives of your own choosing; to engage in con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection; or to refrain
from any or all such activities.
All of our Employees are free to join or not to join any
union, or to exercise any other right under the National
Labor Relations Act, as they see fit, without any interfer-
ence, restraint or coercion from us.
WEtLStI LUMBER AND SUPPLY, INC. D/B/A BiG
BUL(K LUMBER
158