Bulk Haulers, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 244 (N.L.R.B. 1975)

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bulk Haulers, Inc. and Chauffeurs , Teamsters and
Helpers, Local 633 of New Hampshire, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 1-CA-7998
July 18, 1975
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On November 22, 1972, the National Labor Rela-
tions Board issued its original Decision and Order in
this case' finding, in agreement with the Administra-
tive Law Judge, that the Respondent had not violat-
ed Section 8(a)(1) and (3) of the Act as alleged. On a
petition for review, the United States Court of Ap-
peals for the District of Columbia Circuit on Decem-
ber 23, 1974, reversed the Board's determinations
and remanded the case to the Board for further con-
sideration as specified-in its decision .2 By letter dated
February 28, 1975, the Board notified the parties that
they could file statements of position concerning the
issues raised by the court's remand . Such statements
were filed by all parties.
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.
I. BACKGROUND
Respondent Bulk Haulers maintains, insofar as
relevant here, a truck terminal at Nashua, New
Hampshire, where it employs some three to five in-
terstate truckdrivers. In early November 1971, Ron-
ald Hall, one of the drivers, contacted the Union and
several union meetings were held at his house.
Among others, employee Stephen McKay attended
the meetings. Also, according to Hall, McKay was
the driver to whom he talked most about the Union
in November.
Towards the end of the month Therriault,
Respondent's vice president of operations, called
McKay into a conference room where, in the course
of a conversation first concerned with certain truck-
ing problems, he asked McKay if he had been ap-
proached by the Union, adding that McKay need
not reply if he wished not to. McKay said he had
been approached. Later in the conversation Ther-
'200 NLRB 389.
2 Chauffeurs, Teamsters and Helpers, Local 633 of New Hampshire, IBT v.
N.L.R.B., 509 F.2d 490 (C.A.D.C., 1974).
riault told McKay that if the Union got in it would
institute a seniority plan under which McKay could
"come up short." A week or so later, Therriault dis-
charged Hall, assertedly for being late for pickup ap-
pointments. The Respondent concedes that it was
opposed to the organization of its drivers and it also
appears that it was aware of those organizational at-
tempts in general and of Hall 's activities in particu-
lar.;
II. THE ALLEGED 8(a)(1) VIOLATIONS
The complaint alleged in effect that Therriault's
asking McKay if he had been approached by the
Union and threatening him he would come up short
if the Union got in violated Section 8(a)(1) of the
Act. The Trial Examiner-and hence the Board
which adopted his decision-held that the interroga-
tion was limited in scope, that its coercive aspect, if
any, was blunted by the assurance to McKay he need
not answer, and thus that it was not unlawful. With
respect to Therriault's comment that McKay would
"come up short" under union-instituted seniority, the
Trial Examiner held it to be a permissible prediction
and not an unlawful threat. The court refused to ac-
cept these ultimate findings. With respect to the in-
terrogation it noted that it was extremely dubious
that Therriault's assuring McKay he need not answer
would "blunt" any coercive effect of the questioning.
As for the statement McKay might "come up short,"
the court was concerned that the comment might
very well not be an innocent prediction because, it
concluded, there was "no evidence in the record to
support the trial examiner's conclusion that Ther-
riault had a reasonable basis for asserting that the
Union might bring in a seniority system which would
disadvantage McKay." 4 However, the court's prima-
ry concern with the Trial Examiner's, and thus the
Board's, resolution of the 8(a)(1) issues was that the
result had not been reached after "the type of inquiry
mandated by Bourne and related cases." 5 Thus, it
The court found that Therriault had knowledge of Hall's union activi-
ties. His more general knowledge can properly be inferred from his testimo-
ny that he at one time or another asked every driver but Hall if he had been
approached by the Union.
In support of its position the court referred to the Supreme Court's
decision in N L.R.B. v. Gissel Packing Co., 395 U.S. 575, which "establishes
that [employer statements as to the effect of unionization ] must be either
non-coercive or a prediction 'carefully phrased on the basis of objective fact
to convey an employer's belief as to demonstrably probable consequences
beyond his control ... "' 509 F.2d at 494.
Referring to Bourne v . N L.R.B., 332 F.2d 47 (C.A. 2, 1964). There the
court stated that interrogation , itself not threatening, is not an unfair labor
practice unless it meets certain fairly severe standards which include: (1)
The background , i.e., is there a history of employer hostility and discrimina-
tion9 (2) The nature of the information sought, e.g., did the interrogator
appear to be seeking information on which to base taking action against
individual employees? (3) The identity of the questioner, i.e., how high was
he in the company hierarchy? (4) Place and method of interrogation, e.g.,
was the employee called from work to the boss' office? Was there an atmo-
sphere of "unnatural formality"? (5) Truthfulness of the reply.
219 NLRB No. 39
BULK HAULERS, INC.
remanded the case for the Board's reconsideration of
the 8(a)(1) allegations on the basis of a more compre-
hensive evaluation of Therriault's conduct in light of
the factors summarized above. The Board having ac-
cepted the remand, we accept the court's views as the
law of the case.
We have outlined above the facts relevant to a
broad reconsideration of the 8(a)(1) issues . It readily
appears that the alleged improper conversation oc-
curred shortly after unionization of Respondent's
drivers began, that Respondent was aware of and op-
posed to such unionization, and that the conversa-
tion was conducted by a high company official, not a
minor supervisor, in a conference room which was
not a part of the drivers' work area. It is also perti-
nent to note that the information elicited by Ther-
riault-i.e., McKay's acknowledging he had been ap-
proached by the Union-was almost immediately
followed by a warning (to use a neutral term) that
McKay should not support the Union because its
success could result in an economic loss to him. Con-
sequently, it appears that Therriault sought the infor-
mation concerning union activities for the purpose,
perhaps among others, of guiding his actions to de-
feat the Union's organizational efforts. In any event,
we find that in the circumstances here the interroga-
tion of McKay was coercive and thus in violation of
Section 8(a)(1) of the Act.
Furthermore, we find that Therriault's warning to
McKay that he might come up short if the Union got
in was an unlawful threat. As indicated, the court
found that there was no evidence to support
Therriault's assertion that the Union would institute
a seniority system adverse to McKay's interest. Thus,
Therriault's warning was a prediction in form only
but in substance was a clear threat of economic retal-
iation if the Union were successful-a threat evoked
by his learning through illegal interrogation that the
Union had approached McKay. In these circum-
stances, we find that Therriault's warning to McKay
violated Section 8(a)(1) of the Act.
III. THE ALLEGED 8(a)(3) AND (1) VIOLATION
Ronald Hall was discharged by Therriault on De-
cember 9, 1971. The Trial Examiner conceded the
discharge was suspicious. However, he concluded
Respondent had no knowledge of Hall 's activities on
behalf of the Union and on that ground alone found
that the General Counsel had failed to prove the dis-
charge was unlawful. The court agreed that the dis-
charge was highly suspect. But it found, contrary to
the Trial Examiner and thus the Board, that Ther-
245
riault did, indeed, at times relevant have knowledge
of Hall's union activities. Consequently, it remanded
for the purpose of the Board's determining "whether
Hall's discharge was motivated by his union activi-
ties" and was thus unlawful.
Absent good cause there can be no doubt but that
Hall's discharge was occasioned by his union activi-
ties. As described above, Hall was the leading union
activist among Respondent's drivers and it was he
who first contacted the Union. He held several union
meetings at his house and was otherwise active on
behalf of the Union. Also, as stated, Respondent was
opposed to the Union, and Hall's discharge occurred
about a month after he initiated union organizational
activities and only about a week or so after the un-
lawful interrogation of McKay.
The Respondent contends basically that Hall was
discharged because of his poor record in arriving on
time for appointments to pick up cargos, latenesses
which it contends threatened the loss of its primary
customer, the New Hampshire State Liquor Commis-
sion.6 However, the event which precipitated the dis-
charge was, according to Thernault, Hall's late arriv-
al at Taylor Wines on December 6; that lateness
resulted, Therriault claimed, in a telephone com-
plaint from Taylor to Respondent's dispatcher who
in turn informed him, Therriault, of the lateness, and
consequent complaint. To be sure, in the spring of
1971-over 6 months before his discharge-Hall's
lateness on several occasions resulted in a complaint
to Respondent from the State Liquor Commission.
However, subsequent to that time and up till Decem-
ber 6, though Hall was late on various occasions-
sometimes for wholly justified reasons-his work as a
driver resulted in no further complaints to Respon-
dent. Then came the December 6 incident as out-
lined by Therriault. But we note that Respondent's
dispatcher testified that he received no telephone call
from Taylor complaining about Hall being late on
December 6, and that he never told Therriault that
he had received such a call. The Trial Examiner cred-
ited the dispatcher's testimony and, in consequence,
discredited Therriault. Thus, the event which Ther-
6 In its statement of position the Respondent included a "Recap of Ser-
vice Failures of Ronald Hall," a document which, as it concedes, "was
rejected as an exhibit by the Trial Examiner on the grounds that it was a
duplication of evidence already in the official record" but which , it con-
tends, "nonetheless highlights the events which led Therriault to the conclu-
sion that Hall had to be dismissed from the Respondent 's employ." The
Union filed a motion requesting that the Board strike and disregard the
"Recap of Service Failures of Ronald Hall" summary, on the ground main-
ly that the record is closed and the introduction of a document, especially a
previously rejected one, is inappropriate . However, the Respondent in its
statement is not seeking to have the summary placed in evidence. Rather it
appears there as part of the Respondent's argument and is entitled to no
more or less consideration than any other argument in a brief involving an
asserted recapitulation or summary of evidence in a record . Consequently
we find no merit in the Union's position and its motion is denied
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
riault stated caused him to discharge Hall did not in
fact occur, and Therriault's contrary testimony is ob-
viously an intended coverup of what was, we find, his
unlawful union-related reasons for the discharge?
Therefore, as Respondent had not for some 6 months
or more prior to December 6 received any com-
plaints suggesting Hall's tardiness was jeopardizing
its business, and as Taylor made no complaint on
that date concerning Hall, we find that Respondent's
proffered economic reason for discharging Hall was
without substance and that the reason for the dis-
charge was Hall's union activities. Consequently, we
further find that Respondent in discharging Ronald
Hall on December 9, 1971, violated Section 8(a)(3)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above
and in the Trial Examiner's Decision have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act, we
shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate
the policies of the Act.
Having found that the Respondent discharged
Ronald Hall because of his union activities, we shall
order that Hall be offered immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority or other rights and privi-
r To shore up what was an obviously disintegrating position , the Respon-
dent shifted grounds somewhat and sought to defend Hall's discharge on
the ground that Themault knew Hall had left Nashua late and thus could
properly presume he would amve late for his 3 p.m. appointment . Hall does
seem to have had a proclivity for giving himself very little leeway with
respect to time in reaching his appointments . Nevertheless , the record does
show that Hall could have arrived at Taylor Wines on time while driving
within the legal speed limits. However , he did not in fact arrive until 3.25
p.m. But Themault did not know that when he decided to discharge Hall.
Furthermore , Hall testified without contradiction that he had been told by
Respondent that he had a half hour allowable margin in arriving for ap-
pointments at Taylor Wines . And, in any event, as stated, Hall's arrival at
3:25 evoked no complaint from Taylor . Also, as mentioned in the Trial
Examiner's Decision , Hall wrote in his drivers log that he arrived at Taylor
at 3 p .m., not 325 Therriault was unaware of this misstatement at the time
he fired Hall . Furthermore , as the record shows, the misstatement was not
made for purposes of misleading Respondent concerning Hall's time of
arrival but for the purpose of making it appear when he started on his return
trip at I I p .m. that he had had the required 8-hour layover
leges , and that Respondent make him whole for any
loss of earnings he may have suffered by reason of
the discrimination against him by paying to him a
sum of money equal to that which he normally would
have earned as wages from the date of his discharge
to the date of the offer of reinstatement, less net
earnings . Backpay shall be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), and shall include interest as provided in
Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. Bulk Haulers, Inc., is , and at all material times
has been, an employer within the meaning of Section
2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers, Local 633
of New Hampshire, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is, and at all material
times has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. By interrogating Stephen McKay concerning
his union activities and by threatening him with ad-
verse consequences if the Union were successful in
organizing its drivers, Respondent engaged in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
4. By discharging Ronald Hall because of his ac-
tivities on behalf of the Union, Respondent engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
5. The above unfair labor practices are unfair la-
bor practices within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Bulk
Haulers, Inc., Nashua, New Hampshire, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning union ac-
tivities.
(b) Threatening employees with adverse conse-
quences if Chauffeurs, Teamsters and Helpers, Local
633 of New Hampshire, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other union,
becomes their bargaining representative.
(c) Discouraging membership in, or activities on
behalf of, the above-named or any other labor orga-
BULK HAULERS , INC. 247
nization by discharging employees or by otherwise
discriminating against its employees in regard to hire,
tenure of employment, or any other term and condi-
tion of employment because of their union activities.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights protected by Section 7 of the Act.
(2) Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer Ronald Hall immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without prej-
udice to his seniority or other rights and privileges or
working conditions, and make him whole for any loss
of earnings he may have suffered as a result of the
discrimination against him, such backpay to be de-
termined in the manner set forth in the section herein
entitled "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,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its Nashua, New Hampshire, estab-
lishment copies of the attached notice marked "Ap-
pendix." 8 Copies of said notice, on forms provided
by the Regional Director for Region 1, after being
duly signed by the Respondent's representative, shall
be posted by the Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
8 In the event 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
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question employees
about union activities.
WE WILL NOT threaten employees that they will
"come up short" or be otherwise hurt if the
Chauffeurs, Teamsters and Helpers, Local 633
of New Hampshire, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
union, becomes their bargaining representative.
WE WILL NOT discharge you because you en-
gage in activities in support of Local 633 or any
other union.
WE WILL NOT in any other way interfere with,
restrain, or coerce you in the exercise of your
rights to organize; to form, join, or assist a labor
organization; to bargain collectively through a
bargaining agent chosen by you; to engage in
other group activities for the purpose of collec-
tive bargaining or other mutual aid or protec-
tion; or to refrain from any such activities.
WE WILL offer to reinstate Ronald Hall to his
former job or, if that job no longer exists, to a
substantially equivalent one, without any loss in
his seniority or other rights and privileges and
WE WILL pay him any money he lost as a result of
our discrimination against him with interest at 6
percent.
BULK HAULERS, INC.