Bilyeu Motor Corp.

National Labor Relations Board - Board Decisions

Nov 15, 1966

161 N.L.R.B. 982 (N.L.R.B. 1966)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be construed to require or permit Respondent to revoke , withdraw, alter, or
modify any wage increase or other economic benefit previously granted the
employees.
WE WILL NOT promise employees , tacitly or explicitly , benefits as an induce-
ment to renounce the Union as their exclusive bargaining representative.
WE WILL NOT conduct or require polls of our employees , or assist or par-
ticipate in any activities designed to determine the desires of said employees
with regard to representation by the Union as bargaining agent or insist upon
or require such polls as a prerequisite to further bargaining with the Union.
WE WILL NOT engage in or create the impression of engaging in surveillance
of the union activities of our employees.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to join or assist said
Union or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in any other concerted activities
for the purpose of mutual aid or protection , or to refrain from any and all
such activities , except to the extent that such right may be affected by an agree-
ment in conformity with Section 8(a)(3) of the National Labor Relations
Act, as amended.
WE WILL, upon request, bargain collectively with said Union as the exclusive
collective-bargaining representative of all the employees in the appropriate
unit , and, if an understanding is reached , embody such understanding in a
signed agreement . The appropriate unit is:
All production and maintenance employees , including truck drivers
employed by the Employer at its Denver, Colorado plant ; excluding
office clerical employees , salesmen , driver salesmen , guards, professional
employees , and supervisors as defined in the Act.
SHURTENDA STEAKS, 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, 609
Railway Exchange Building, 17th and Champa Streets, Denver , Colorado 80202,
Telephone 688-5850.
Bilyeu Motor Corp. and General Drivers, Salesdrivers, Ware-
housemen & Helpers Local Union 245, International Brother-
hood ` of Teamsters, Chauffeurs , Warehousemen & Helpers of
America. Case 17-CA-2844. November 15, 1966
DECISION AND ORDER
On August 2, 1966, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General Counsel filed excep-
tions and a supporting brief.
161 NLRB No. 93.
BILYEU MOTOR CORP. 983
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 briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications :
We are of the opinion, in agreement with the General Counsel, that
the policies of the Act will best be effectuated if the notice which
Respondent is required to sign and post, and which informs the
employees of their rights, how those rights were violated, and by
what process they have been upheld, is expressed in simple and
readily understandable language, as set forth in the attached Appen-
dix. Furthermore, since the record discloses that Bill Bilyeu, Respond-
ent's president and general manager, is in fact the sole owner of
Bilyeu Motor Corp. and the only person to decide upon and effectu-
ate company policies, and was in fact the person responsible for the
unlawful discharge of employee Fetterhoff, we think that the effect
of his unfair labor practice conduct will best be dispelled if he is
required, as requested by the General Counsel, to sign the notice as
president and sole owner of Respondent.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute for the words "Intermediate Report" in paragraph
2(a) the words "Trial Examiner's Decision."
[2. In paragraph 2(d) substitute for the phrase "after being duly
signed by the Respondent or its authorized representative" the phrase
"after being duly signed by the Respondent, by Bill Bilyeu as
President and Owner."
[3. Substitute for the Appendix set forth in the Trial Examiner's
Decision, the attached Appendix.]
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 :
After a trial in which both sides had the opportunity to present
their evidence, the National Labor Relations Board has found that
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we violated the law and has ordered us to post this notice and to keep
our word about what we say in this notice.
WE WILL NOT question you in any way over the Union.
WE WILL NOT threaten you in any way over the Union.
WE WILL NOT discourage union, activity or membership in
General Drivers, Salesdrivers, Warehousemen & Helpers Local
Union 245, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor organi-
zation, by discriminating against you if you choose to engage in
union activity or join General Drivers, Salesdrivers, Warehouse-
men & Helpers Local Union 245, or any other union.
WE WILL NOT discriminate against any employee for engaging
in union activity. Since the Board found that we did so when we
fired James Fetterhoff WE WILL offer to James Fetterhoff full
reinstatement to his old job, and WE WILL pay him for any loss
that he suffered because we fired him. If he is presently in the
Armed Forces of the United States, WE WILL notify him of his
right to full reinstatement upon application after discharge from
the Armed Forces.
WE WILL respect the rights of our employees to self-organiza-
tion, to form, join, or assist any labor organization, or to bargain
collectively in respect to terms or conditions or employment
through said Union, or any representative of their own choosing,
or to refrain from such activity, and WE WILL NOT interfere with,
restrain, or coerce our employees in the exercise of these rights,
except insofar as these rights could be affected by any contract
with a labor organization, if validly made in accordance with the
National Labor Relations Act, whereby membership therein is a
condition of employment after the 30th day following the date
of such contract or the beginning of such employment, whichever
is later.
You and all our employees are free to become members of any labor
organization, or to refrain from doing so.
BILYEU MOTOR CORP.,
Employer.
Dated-- --------------- By-------------------------------- --
Bill Bilyeu President and Owner
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 com-
pliance with its provisions, they may communicate directly with the
Board's Regional Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR 4-5282.
BILYEU MOTOR CORP.
TRIAL EXAMINER'S DECISION
985
STATEMENT OF THE CASE
This proceeding was held before Trial Examiner John H. Eadie in Springfield,
Missouri, on May 5, 1966, on the complaint of the General Counsel and the answer
of Bilyeu Motor Corp., herein called the Respondent.' The issue litigated was
whether the Respondent violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Florida corporation which is licensed to do business in the
State of Missouri . It has its principal place of business at Springfield , Missouri,
where it operates a trucking firm furnishing interstate transportation service. The
Respondent annually derives gross revenue in excess of $50 ,000 for interstate trans-
portation services to customers.
The complaint alleges, the Respondent's answer admits, and I find that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Drivers, Salesdrivers , Warehousemen & Helpers Local Union 245, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
James Fetterhoff was hired by the Respondent on May 5, 1965. At all times
material herein, he worked as a mechanic on "Thermo-King" refrigeration.
On December 16, 1965, Household Finance Corporation obtained a judgment
against Fetterhoff in the amount of $891 . 89 in the Magistrate Court of Greene
County, Missouri. The suit involved a note dated December 17, 1956, and made
by Fetterhoff and his former wife. On January 3, 1966, a "summons to garnishee"
was served on Tom Mayberry, the Respondent's bookkeeper.
Shortly thereafter Bill Bilyeu , the Respondent 's president and general manager,
spoke to Fetterhoff about the garnishment. In substance, Bilyeu told him that the
Respondent did not "go along with things like this"; and that if he did not get it
"straightened out," he would be forced to terminate his employment. Fetterhoff
replied that the debt was contracted by a former wife, that his name was not on
the note, and that he would quit his employment before he would pay for it.
Bilyeu told him "if this is true the divorce papers would be dated prior to [the
note] . go see our Company attorneys . you get it straightened out and it
[will] be forgotten." At a later date Bilyeu asked Fetterhoff if he had the garnish-
ment "straightened out." Fetterhoff replied that he was "working on it."
As a result of negotiations between Fetterhoff and Household Finance, its
attorney by letter dated January 28, 1966, requested the clerk of the Magistrate
Court to release the garnishment. On January 31, 1966, the sheriff of Greene
County served notice on the Respondent that it was released from further liability
as garnishee. About the same time Mayberry told Fetterhoff that the garnishment
would be released after the Respondent deducted $27.35, or 10 percent of his
wages. The Respondent deducted this amount from Fetterhoff's wages and sent it
to the Magistrate Court. A receipt, dated February 3, 1966, was mailed by the
Magistrate Court to the Respondent.
On January 31, Fetterhoff was called to the shop by Neal Gott, the Respondent's
maintenance foreman, in order to fix a trailer. While at work he had a conversation
about the Union with a truckdriver of another company. As a result of this con-
versation, on February 3 after work Fetterhoff went to the Union's office where he
spoke to Bob Kirk, an assistant business representative of the Union. They dis-
cussed organization of the Respondent's employees. Kirk told him that he should
solicit the other mechanics to sign authorization cards.
i The charge was filed on February 8, 1960 The complaint issued on March 16. 1966
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 4, during work Fetterhoff talked to the mechanics about the Union,
"just feeling them out." About 9:30 a.m. on February 5, the employees took a
"coffee break." While employees Donald Oliver, Harry Blevins, Robert Mac Rear,
and Leo Larson were sitting at a table in the shop , Fetterhoff gave each of them a
union card. As they were discussing the cards Gott and Walter Doyle , the Respond-
ent's dispatcher , joined the group . Oliver had a card in his hand at the time. Gott
took the card and asked Oliver where he got it. Oliver "jokingly" replied that he
had found it on Gott's desk. Gott asked the employees who owned the cards.
Fetterhoff answered that they were his. Gott told him that he "could get fired for
passing out union cards." 2 Gott and Doyle then left the plant in the latter's car.
I find that the above interrogation and threat of reprisal by Gott violated Section
8(a)(1) of the Act.
About 1 hour and 10 minutes after the above incident Bilyeu came to Fetterhoff's,
place of work and discharged him. He told Fetterhoff to pack his tools and "get the
hell out of here." As Fetterhoff was packing his tools, Gott brought him his final
paycheck. Fetterhoff accused Gott of causing his discharge. Gott denied this. Fetter-
hoff did not have any conversation with either Bilyeu or Gott at the time of his
discharge other than the above.
Fetterhoff testified that at the time of his discharge he was working on a Thermo-
King that was on the top and front of a trailer which was parked in a stall "about
middleways in the shop"; the doors entering into the offices were at the south end
of the shop; between his trailer and the office entrance there were three tractors but
no trailers; from his place of work he could see the office entrance; if a trailer had
been parked between him and the south end of the shop, he would not have been
able to see the office entrance; Gott and Doyle returned to the shop about 1 hour
after the coffeebreak; Doyle went into the dispatcher's office and Gott entered the
door "leading to Mr. Bilyeu's office"; and Bilyeu discharged him about 10 minutes
later.
Oliver testified that after the coffeebreak he returned to work fixing brakes
"under" a trailer which was parked in "about the fourth stall from the office";
Fetterhoff worked on the front end of a trailer in the next or fifth stall from the
office entrance; and "possibly" there were other vehicles between his trailer and
the office.
Blevins testified that he was working on a tractor in the second stall; he did not
recall any vehicle in the first stall; Fetterhoff and Oliver were working on the
same trailer which was parked in the third stall; and there was another trailer in
the fourth stall.
Concerning work in the stalls on February 5, Bilyeu testified , "There was a,
trailer in the first stall, there was two tractors in the second stall, and two trailers
in the third and fourth stall . . . . That was between 8:30 and 9 o'clock Don
Oliver was working on the brakes of that trailer in the - first stall. Harry Blevins
was greasing the trucks in the second stall . . . and Fetterhoff was working on the
front of a trailer in Stall 3 ." Bilyeu further testified to the effect that he tried
unsuccessfully to locate Gott about 8:30 and again after the coffeebreak during the
morning of February 5, in order to have him discharge Fetterhoff, that he did not
see Gott until after he (Bilyeu) had discharged Fetterhoff, and that he did not
know about the union cards at the time of discharge.
Gott testified that after the coffeebreak he was absent from the plant "about an
hour and a half, hour forty-five minutes"; he immediately went to the office where
Mayberry informed him that Bilyeu had discharged Fetterhoff ; and he did not tell
Bilyeu about the union cards until later that same day . Doyle testified that he and
Gott left the shop about 9:30 a.m. and returned after "about an hour and a half,
something like that."
2 The above conversation is based upon credited testimony of Fetterhoff, Oliver, and
Blevins When questioned as to whether he had made the above statement to Fetterhoff,
Gott testified, "I cautiously mentioned something like that, but we was just joking and
going on like we always do around the place." Doyle testified that be did not hear the
remark attributed to Gott. Rear and Larson were called as witnesses by the Respondent.
Rear testified to the effect that he did not see Gott during the coffeebreak. Larson testified
that he saw Gott "walk by one time" but that be did not recall him "saying anything "
BILYEU MOTOR CORP. 987
Bilyeu was the only witness who testified that there was a trailer in the first
stall. However, in this connection he testified , "There was a trailer in the first stall,
. The reason I know this is when I went out the first time [about 8:30 a.m.]
looking for Neale, Don Oliver was working on the brakes of that first trailer." It
is clear from the testimony of Oliver and Blevins that the former was not working
on a trailer in the first stall between 10:30 and 11 a.m., but was working on one
located either in the third or fourth stall. Oliver was not questioned as to where
he was working at 8:30 a.m.
Oliver testified that after the coffeebreak he was working in "about" the fourth
stall and that Fetterhoff was in the "next" or fifth stall. That Oliver was mistaken
is shown by the testimony of Bilyeu to the effect that the fifth stall was used for
storage of material such as "crap , meat hooks and stuff like that ." Oliver, Blevins,
and Bilyeu were in agreement that two trailers were parked at the end of the line.
Contrary to Oliver, Bilyeu testified that Fetterhoff was working on the next to the
last trailer on the line or in the third stall. This agrees with Blevins ' testimony and
does not conflict with that of Fetterhoff . For the above reasons I credit the testi-
mony of Fetterhoff and Blevins in this connection and find that Fetterhoff's view
of the office entrance was not blocked by a trailer at the time in question.
Bilyeu testified that the discharge took place at "10 o'clock to 10 : 20, somewhere
in there." Later he testified that Fetterhoff's timecard was punched out at 10:58
a.m., but that he did not know if Fetterhoff "loaded the tools on my time or his."
This agrees with Fetterhoff 's testimony to the effect that Bilyeu discharged him
about 10:40 a.m. Accordingly, I credit Fetterhoff's testimony and find that Gott
returned to the plant and entered Bilyeu's office about 10:30 a.m. and before the
discharge.
Bilyeu testified that it was company policy not to retain an employee involved
in a garnishment "that is legal and binding ," and that the only reason he dis-
charged Fetterhoff was "because he lied to me about that garnishment ." In this
connection he testified that on February 5, he went to the post office before going
to the plant; when he opened his mail at the post office , he discovered the receipt
from the Magistrate Court; "Fetterhoff was fired at the post office as far as I was
concerned"; when he got to the plant about 8:30 a.m., he immediately went out
into the shop to find Gott in order to have him discharge Fetterhoff ; not finding
him, he returned to the office and spoke to Mayberry, asking him, "What's hap-
pened on this garnishment ? You are making a payment on the garnishment. [Fet-
terhoff] said he didn't owe it"; Mayberry told him that he had been informed by
Household Finance that it had released the garnishment since Fetterhoff had agreed
to make payments "on the side"; "between 10 and 10 : 20" he again went out into
the shop to look for Gott; he then returned to the office and questioned Mayberry
further about the garnishment ; and he discharged Fetterhoff after this conversation.
I find that the Respondent's reason for the discharge was a mere pretext . Bilyeu
admitted that he knew that the garnishment had been released before he discharged
Fetterhoff . As for Fetterhoff 's alleged lying, it is difficult to understand from Bilyeu's
testimony how he could have arrived at this conclusion before the discharge.
According to Bilyeu, Mayberry had merely informed him that Fetterhoff had made
arrangements to make payments directly to Household Finance. He did not question
Fetterhoff about the matter , but discharged him without giving any reason 10
minutes after Gott returned to the plant . Under all of the circumstances, I find that
Fetterhoff was discharged because of his union activity in violation of Section
8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the Respondent 's operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom, and that it take certain
affirmative action designed to effectuate the policies of the Act.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Respondent discharged James Fetterhoff on Febru-
ary 5, 1966. Accordingly, it will be recommended that the Respondent offer Fetter-
hoff immediate and full reinstatement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights or privileges, and make him
whole for any loss of pay suffered by reason of the discrimination by payment to
him of a sum of money equal to that which he would have earned as wages from
the date of the discrimination to the date of reinstatement , less his net earnings
during such period in accordance with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289, together with interest on such sum, such interest to be
computed in accordance with the formula prescribed by the Board in Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. By discharging James Fetterhoff because of his activities on behalf of the
Union, thereby discouraging membership in the Union, the Respondent has engaged
in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that the Respondent, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or any other labor organization
of its employees, by discharging employees or otherwise discriminating against
them in regard to their hire and tenure of employment or any term or condition
of employment.
(b) Interrogating its employees concerning their membership in or activities on
behalf of the Union, or making threats of reprisal because of such activity.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named labor organization, or any other labor organization,
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, or to refrain from any or all such activities, except to
the extent that such rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer James Fetterhoff immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights
or privileges, and make him whole in the manner set forth in the above section
entitled "The Remedy."
(b) Notify James Fetterhoff if presently 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.
CRAWFORD MANUFACTURING CO. 989
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying , all records necessary for the determination of the amount
of backpay due under these recommendations.
(d) Post at its plant in Springfield , Missouri , copies of the attached notice
marked "Appendix ." 3 Copies of said notice , to be furnished by the Regional
Director for Region 17, after being duly signed by the Respondent or its authorized
representatives , shall be posted by Respondent immediately upon receipt thereof,
and be maintained 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 altered , defaced , or covered
by any other material.
(e) Notify the Regional Director for Region 17, in writing , within 20 days from
the date of the receipt of this Decision , what steps it has taken to comply herewith.4
' In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision
and Order."
4In 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."
Crawford Manufacturing Co., Inc. and Amalgamated Clothing
Workers of America, AFL-CIO. Cases 17-CA-2645 and 17-RC-
4687. November 15, 1956
DECISION AND ORDER
On April 15, 1966, Trial Examiner Owsley Vose issued his Dec Sion
in the above-entitled proceedings, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a supporting brief, and the Gen-
eral Counsel filed cross-exceptions to the Trial Examiner 's Decision
and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and
Members Jenkins and Zagoria].
161 NLRB No. 91.