C. H. Sprague & Son Co.

National Labor Relations Board - Board Decisions

Apr 16, 1969

175 N.L.R.B. 378 (N.L.R.B. 1969)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. H. Sprague & Son Co . and Chauffeurs,
Teamsters , & Helpers Local Union No. 633 of
New Hampshire , a/w International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case 1-CA-6096
April 16, 1969
DECISION AND ORDER
By CHAIRMAN MCCiJLLOCH AND MEMBERS
JENKINS AND ZAGORIA
On May 31, 1968, Trial Examiner David London
issued his Decision in the above-entitled proceeding,
finding that the 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 Decision. He
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed exceptions
to the Trial Examiner's Decision together with
supporting briefs ' The General Counsel also filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel
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 this case, and hereby adopts
the findings,' conclusions, and recommendations' of
the Trial Examiner, as modified below.
'On March 28, 1969, the Respondent filed with the Board a motion to
reopen the case and receive into evidence the decertification petition, since
dismissed , which was filed in Case I-RD-574 The General Counsel filed a
memorandum in opposition
In agreement with the General Counsel , we find that the evidence sought
to be introduced by the Respondent is irrelevant to this proceeding The
Respondent ' s motion is hereby denied
'The Respondent claims prejudicial error on the part of the Trial
Examiner in denying its motion to take a deposition of Kenneth Thurston
after the hearing This motion was denied by the Trial Examiner and is
renewed here We affirm the Trial Examiner ' s finding that the Respondent
failed to show due diligence in procuring in timely fashion the testimony of
this individual The Respondent ' s motion is denied
'Upon examination of the record herein, we conclude that the Trial
Examiner inadvertently identified Albert Wiggin as an employee against
whom the Respondent had discriminated , whereas in fact that individual
was Wesley Thompson Wiggin, although he testified at the hearing, did
not indicate whether or not he was offered reemployment by the
Respondent in the fall of 1967 Thompson testified at the hearing that he
sought reemployment in the fall of 1967, and that his application was
rejected Thompson was one of the 12 individuals known to have voted for
the Union in these circumstances , we find that Thompson was denied
reemployment for discriminatory reasons and shall, accordingly , substitute
his name for that of Wiggin in the remedial portion of this Decision and
Order
The complaint alleges, inter a/ia, that the
Respondent violated Section 8(a)(1) and (5) in
connection with the subcontracting of certain of its
operations. The Trial Examiner did not consider or
make specific findings concerning such allegations,
but disposed of them by his bare conclusion that the
General Counsel had not met his burden of proof.
We disagree with this holding of the Trial Examiner
and find the subcontracting unlawful, as alleged.
As the Trial Examiner found, the Respondent's
operations are seasonal. Its year-round complement
consists of approximately 25 employees. During the
winter months it utilizes about 25 additional drivers
to supplement its year-round complement Prior to
the events alleged herein as violations of the Act,
these 25 additional drivers, called "winter drivers,"
were employees of the Respondent, most of whom
had at least 3 years prior winter service with the
Respondent In addition, during the rush season,
i.e., the coldest 2 or 3 months of the winter, the
Respondent utilized, on a limited basis, the services
of 6 or 8 independent contractors.
On February 10, 1967, the Union filed a
representation petition which, following an election
held on May 24, culminated on August 24 in the
certification of the Union as the representative of all
the Respondent's truckdrivers at Portsmouth, New
Hampshire, including the winter drivers. Throughout
the representation proceeding,' the Respondent
opposed the inclusion of the winter drivers in the
unit, and it refused following the certification to
bargain with the Union because they were so
included. In addition, as the Trial Examiner found,
the Respondent, without bargaining with the Union,
took action adversely affecting the winter drivers'
tenure and conditions of employment. Further,
certain winter drivers who applied for reemployment
during the 1967-68 season were denied employment,
despite the Respondent's practice and policy of
recalling and reemploying former winter drivers.
The reasons given for the failure to reemploy those
drivers were, as the Trial Examiner found,
pretextuous. During the 1967-68 winter season the
Respondent's complement of 50 drivers was
composed of 20 year-round drivers, only 4 winter
drivers, and 26 independent contractors. This is in
While the Trial Examiner at one point in his Decision included the name
of Kenneth Rollins in a group of employees as to whom he found a lack of
proof that the Respondent refused to recall, the record supports the Trial
Examiner ' s subsequent contrary finding, with which we agree, that the
Respondent in fact refused to recall this employee and that the reasons
assigned by the Respondent for its refusal were pretextual in nature. We
find that the Respondent refused to recall Kenneth Rollins because he
voted for the Union , and thereby violated Section 8 (aX3) of the Act
Therefore , we shall include this employee in the remedial portion of our
Decision and Order
'We find that the unfair labor practices committed by the Respondent
are potentially related to other unfair labor practices proscribed by the
Act, and that the danger of their commission in the future is to be
anticipated by reason of the Respondent 's conduct in the past As the
preventive purposes of the Act will be thwarted unless our Order is
coextensive with the threat , we specifically adopt the broad remedial order
recommended by the Trial Examiner
'Case I-RC-9419
175 NLRB No. 61
C H. SPRAGUE & SON CO. 379
contrast to prior winters, in which, as noted, about
half of its 50 drivers were year-round drivers and the
other half were winter drivers, with only limited use
of independent contractors
To the extent that the Trial Examiner has found
unlawful coercion of employees, unlawful refusals to
bargain, and unlawful discrimination against winter
drivers, we agree. We find, however, that the Trial
Examiner has overlooked the Respondent's
fundamental violation which underlies all its other
violations; that is, its subcontracting of its winter
driving operations without bargaining with the
designated representative of its employees.
There can be no doubt that the Respondent's
operations during the 1967-68 winter season,
following the Union's certification, were
significantly different from its operations in prior
winter seasons. In prior seasons, the Respondent
utilized about 50 employee-drivers, about half of
them winter dnvers, and, on a limited basis, 6 or 8
independent contractors. In the 1967-68 winter
season, the Respondent still utilized about 50
drivers, but with the striking difference that only 24
were employee-drivers (and only 4 of them winter
drivers) and the remaining 26 were independent
contractors From an operation manned, with only
limited exceptions, wholly by employees, the
Respondent changed to an operation manned almost
evenly by employees and independent contractors.
With respect to the added winter driving, the
operation changed from one manned, with only
limited exceptions, wholly by employees, to one
manned almost 80 percent by independent
contractors and only 20 percent by employees.
This is the kind of basic change in operations
concerning which an employer, in our opinion, is
obligated to bargain with his employees'
representative As the change took place after the
Union's certification and the Respondent has
concededly refused to bargain at all with the Union,
we find, without more, that the Respondent has
further violated Section 8(a)(5).
The evidence concerning the magnitude of the
change does not, however, stand alone. There is, we
find, persuasive evidence in the record that the
change in the winter driving operations was the
result of the Respondent's deliberate decision to
subcontract its winter driving operations in order to
perclude the union representation of its winter
drivers.
On this record, there can be no doubt concerning
the Respondent's opposition to the union
representation of its winter drivers. The position
which it maintained throughout the representation
proceeding is proof enough of that opposition. The
Respondent did not, however, confine itself to lawful
opposition. Instead, as the Trial Examiner found, it
took action adversely affecting employees' status
and tenure which necessarily tended to discourage
them from seeking reemployment as winter drivers.
Certain winter dnvers who nonetheless sought
reemployment were denied it, despite the
Respondent's protestations that it "would like to
have the men back that had worked for them before
satisfactorily." Although the Trial Examiner found
unlawful discrimination only as to some of them, he
did find as to all that the reasons given by the
Respondent, that they were unsatisfactory, or did
not apply, or were working elsewhere, were not
valid. Finally, in its brief to the Board the
Respondent concedes that at least some of the
winter drivers were not rehired because of its
decision to increase the use of outside equipment
and the services of independent contractors. When
all these factors are considered, it is obvious that the
Respondent set out to achieve by unlawful means
what it had been unable to achieve by lawful means.
Accordingly, we find, as alleged, that the
Respondent violated Section 8(a)(5) and (1) by its
unilateral increase in the use of subcontracting.
THE REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, we shall require that
it cease and desist therefrom and that it take certain
affirmative action which we find to be necessary to
remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
Having found that the Respondent violated
Section 8(a)(5) by its unilateral increase in the use
of subcontracting, we shall order it to return to its
former mode of operations, and we shall order
reinstatement and backpay to those winter drivers
who were denied employment by reason of the
Respondent's unlawful conduct.
In addition, since it has been found that the
Respondent unlawfully refused to employ Abbott,
Colby, Edgecomb, Wesley Thompson, and Kenneth
Rollins during the 1967-68 winter season, we shall
require that the Respondent make these employees
whole for any loss in wages or other compensation
they may have sustained by reason of the
Respondent's unlawful conduct by paying them such
amounts as they would normally have earned as
wages during the 1967-68 and the 1968-69 winter
seasons. Backpay shall be computed on a quarterly
basis in the manner established by the Board in F
W Woolworth Co., 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum
as provided in Isis Plumbing & Heating Co., 138
NLRB 716. We shall also require that the
Respondent offer these employees employment for
the 1968-69 winter season.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. H. Sprague & Son Co , Portsmouth, New
Hampshire, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with loss of
employment because of their membership in or
support of the Union
(b) Promising benefits to its employees in order to
induce them to reject the Union as their
collective-bargaining representative.
(c) Refusing to bargain collectively with the
Union as the exclusive bargaining representative of
all its truckdrivers, including winter drivers, in the
appropriate unit described above, with respect to
rates of pay, wages, hours of employment, or other
terms or conditions of employment.
(d) Unilaterally deviating from, or unilaterally
changing its established policy and practice of
recalling its winter drivers for employment in the
following winter seasons or unilaterally increasing
the use of subcontracting.
(e) Unilaterally requiring former winter drivers to
sign applications as new drivers thereby depriving
them of acquired seniority rights, or unilaterally
requiring them against their will at the close of each
season to certify that they had permanently severed
their entire employment relationship with
Respondent.
(f) Refusing to hire, or rehire, any of its drivers,
or applicants for such employment, because of their
union membership, activities or support
(g) In any other manner interfering with the right
of employees to self-organization, to form labor
organizations, to join or assist the above-named 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 such right 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
Disclosure Act of 1959.
2. Take the following affirmative action designed
and necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment of the employees in the appropriate
unit described herein and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Return to its former mode of operations
existing prior to the unilateral increase in the use of
subcontracting
(c) Offer to Franklin Abbott, Parker Colby,
Walter Edgecomb, Wesley Thompson, Kenneth
Rollins, and others who have been denied
employment by reason of Respondent's unfair labor
practices, employment for the entire winter season
of 1969-70 without prejudice to their seniority and
other rights and privileges, and make each of them
whole for any loss of pay suffered by reason of the
discrimination against them in the manner set forth
in the section above entitled, "The Remedy"
(d) Notify each of the individuals referred to in
the preceeding paragraph, if he is 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.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll and other records necessary or
helpful in analyzing the amount of backpay due
under the terms of this Order.
(f) Post at its plant in Portsmouth, New
Hampshire, copies of the attached notice marked
"Appendix."' Copies of such Notice, on forms to be
provided by the Regional Director for Region 1,
after being duly signed by an authorized
representative of Respondent, shall be posted
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 by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 1, in
writing, within 10 days from the receipt of this
Decision, what steps Respondent has taken to
comply herewith.
.In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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
WE WILL NOT threaten our employees with loss of
employment because of their membership in, or support
of, Chauffeurs, Teamsters & Helpers Local Union No
633 of New Hampshire, a/w international Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization
WE WILL NOT promise benefits to any of our
employees in order to induce them to reject the
above-named union as their collective-bargaining
representative.
WE WILL NOT refuse to bargain with the
above-named union with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment for the employees in the unit described
below
C. H. SPRAGUE & SON CO.
WE WILL NOT unilaterally deviate from or change
our established policy and practice of recalling former
winter drivers for employment in the following winter
seasons, nor unilaterally increase the use of
subcontracting.
WE WILL NOT unilaterally require former winter
drivers to sign applications as new drivers thereby
depriving them of acquired seniority rights, or
unilaterally require them at the close of each season to
unwillingly certify that they have permanently severed
their entire employment relationship with us.
WE WILL NOT refuse to hire, or rehire, any of our
drivers, or applicants for such employment, because of
their membership in or support of the above-named
union or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL return to our former mode of operations
existing prior to the time we unilaterally increased our
use of subcontracting.
WE WILL offer Franklin Abbott, Parker Colby,
Walter Edgecomb, Wesley Thompson, Kenneth Rollins,
and others who have been denied employment by
reason of our unfair labor practices, employment for
the entire winter season of 1969-70 without prejudice to
their seniority rights and privileges, and make each of
them whole for any loss of pay suffered by them
because of our unlawful refusal to hire them during the
1967-68 and the 1968-69 winter seasons
WE WILL notify the above employees, if presently
serving in the Armed Forces of the United States, of
their 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
WE WILL upon request, bargain collectively with
Chauffeurs, Teamsters & Helpers Local Union No. 633
of New Hampshire, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment for the employees in the unit described
below and, if an understanding is reached, embody such
understanding in a signed agreement.
The bargaining unit is All truckdrivers, including
winter drivers and the dispatcher at our Portsmouth
terminal, excluding office clerical employees, guards and
supervisors.
C H. SPRAGUE & SON
Co,
(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, 20th Floor John
F. Kennedy Federal Building, Cambridge & New Sudbury
Streets, Boston, Massachusetts 02203, Telephone
617-223-3300.
TRIAL EXAMINER'S DECISION
Statement of the Case
381
DAVID LONDON, Trial Examiner Upon a charge and
an amended charge filed October 4, 1967, and October 27,
1967, respectively, by Chauffeurs, Teamsters & Helpers
Local Union No. 633 of New Hampshire, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union), the
General Counsel of the Board, on December 13, 1967,
issued the complaint herein alleging that C. H. Sprague &
Son Co. (Respondent or Employer), had engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended
(the Act). In substance, the complaint alleges that
Respondent, a petroleum product distributor, (1) engaged
in specified conduct designed to cause its employees to
reject and thereafter to repudiate the Union as their
collective-bargaining representative; (2) refused to recall
and reemploy 19 laid off winter drivers because they
joined or assisted the Union; (3) refused outright to
bargain with the Union, the certified collective-bargaining
representative of all its drivers, concerning rates of pay,
wages, and other conditions of employment, (4)
unilaterally, and without first notifying or consulting the
Union, changed the prior established practice affecting its
employees' wages, hours, and other conditions of
employment By its answer, Respondent did not deny the
certification of the Union, but alleged that the unit so
certified was not an appropriate unit, and denied the
commission of any unfair labor practice
The hearing herein was held at Portsmouth, New
Hampshire, on February 27-29, 1968, at which the
General Counsel, Respondent and the Union appeared by
counsel and were afforded full opportunity to examine and
cross-examine witnesses and to introduce evidence upon
the issues of the case. Briefs subsequently filed by the
General Counsel, Respondent, and the Union, have been
fully considered.
Upon the entire record in the case, including the record
and transcript of testimony in C H. Sprague & Son Co ,
1-RC-9419, of which I have taken official notice,' and my
observation of the demeanor of the witnesses who testified
before me, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
During all times relevant herein, Respondent has
maintained its principal office and place of business in the
city of Portsmouth, New Hampshire, where it was and is
engaged in the transportation, sale and distribution of
petroleum products. During the past calendar year,
Respondent, in the course and conduct of its business,
shipped directly from its Portsmouth terminal products
valued in excess of $50,000 to points located outside the
State of New Hampshire. The complaint alleges, and
Respondent by its answer admits, that it is and has been
engaged in commerce within the meaning of the Act.
'Paramount Cap Manufacturing Co , 260 F 2d 109, 113 (C A 8), and
cases cited therein Plant City Welding & Tank Co, 123 NLRB 1146,
1150
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein was, a
labor organization within the meaning of Section 2(5) of
the Act
Iii. THE UNFAIR LABOR PRACTICES
A Alleged Violations of Section 8(a)(1)
On February 10, 1967, the Union filed its petition with
the Board in Case I-RC-9419 seeking certification as
collective-bargaining representative of all of Respondent's
truckdrivers at its operations at Portsmouth, New
Hampshire. At an otherwise unidentified date in that
month, Kenneth Thurston, Respondent's assistant
superintendent, and admittedly a supervisor within the
meaning of the Act, told winter driver Albert Wiggin, in
the presence of other employees, that the men were foolish
to join the Union and that if they "got the union in,
Merrill would pull his trucks out," and move somewhere
else.' Sometime in February or March 1967, in the
presence of two other employees, Thurston told Denis
Goudreau, employed as a driver by Respondent for 10 1/2
years, that if "the employees vote the Union in, [they] will
probably lose all [their] benefits and sick leave."'
In late February or early March 1967, Thurston told
driver Richard Henderson that "Merrill would never
operate under a union, that he would pull his equipment
out and close the doors." In late April or early May 1967,
Thurston told driver Paul Bell, in the presence of 3-4
other drivers, that "if the Union was voted in, that a year
from [then, they] wouldn't be here, . . that Merrill would
open up a place" in Newington, New Hampshire, "and
still haul the oil." About 2 weeks before the election that
ensued on May 24, 1967, Thurston told winter driver
Anthony F. Rollins if he "would vote the Union down
that [he] would move right up on the seniority list."
The findings in the preceding paragraphs pertaining to
statements attributed to Thurston are based on the
testimony of the named employees which I credit. All of
them impressed me as worthy of belief and neither by
their demeanor nor their cross-examination gave me
reason to discredit their testimony. Thurston was not
called upon to testify. During the second day of the
hearing, Respondent's counsel stated that Thurston was ill
and could not appear as a witness. On the third and final
day of the hearing, Respondent presented a memorandum
from Thurston's doctor stating that Thurston was under
treatment by him for "severe arthritis and emotional
disturbance." In view of the fact that the complaint
specifically charged Thurston with unlawful conduct, it
may reasonably be assumed that Respondent interviewed
Thurston pertaining to that accusation before the hearing
began. Assuming, arguendo, that Thurston was unable to
personally appear and testify at the hearing herein, it was
incumbent upon Respondent, if it chose to negate the
accusations leveled against him, to make some effort to
have his testimony taken by deposition before, or during,
the hearing herein. This, Respondent failed to do.
Accordingly, on the entire record, I find and conclude that
'J W Pettipas , Respondent 's vice president in charge of operations,
testified that Respondent uses and for many years has used, trucks
supplied by and hired from Merrill Transport
'As the record fails to disclose that these two incidents occurred within
the 6-month limitation period prescribed by Sec 10(b) of the Act, they are
relied on only as background evidence indicating Respondent ' s union
animus
by Thurston's threat to Bell in late April or May 1967
aforementioned, and his inducement to Rollins shortly
before the anticipated election to vote against the Union,
Respondent violated Section 8(a)(1) of the Act
B Alleged Violations of Section 8(a)(5)
As previously indicated, the Union on February 10,
1967,° filed its petition with the Board in Case I-RC-9419
seeking certification as collective-bargaining representative
of all of Respondent's truckdrivers at its operations at
Portsmouth, New Hampshire. Pursuant thereto, the
Board's Regional Director for Region 1, on March 9,
conducted a hearing on said petition in which Respondent
contended that drivers employed only during the winter
season should be excluded from the proposed unit. On
April 24, the said Regional Director filed his Decision and
Direction of Election by which he directed that an election
by secret ballot be conducted among Respondent's
employees in the following unit which he found to be
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act
All truckdrivers , including winter drivers and the
dispatcher at its Portsmouth, New Hampshire location,
excluding office clerical employees, guards and
supervisors as defined in the Act.
Respondent Employer thereafter requested the Board to
review the Regional Director' s Decision and Direction of
Election aforementioned which request was denied by the
Board on May 16 At the directed election, conducted on
May 24, 22 votes were cast for the Union and 12 were
cast against that organization Fourteen additional votes
cast by the winter drivers and which could affect the
results of the election, were challenged by Respondent on
the ground that they were not then employed by
Respondent.
On May 31, Respondent Employer filed with the
aforesaid Regional Director four objections to the election
aforementioned By reason thereof, the Regional Director,
in accordance with Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended, conducted an
investigation of both the challenges and said objections.
On July 28, the Board's Acting Regional Director filed his
Supplemental Decision and Report on said Objections and
challenged ballots by which he overruled all of the
aforesaid objections as being without merit or having been
already considered and rejected by the Regional Director's
Decision and Direction of Election of April 24 With
respect to the unopened l4 challenged ballots, 12 were
challenged on the same grounds considered and disposed
of adversely to the contention of Respondent Employer by
the Regional Director in his previous decision of April 24
and were, therefore, again overruled. The remaining two
challenges were sustained Thereafter, Respondent
Employer sought review by the Board of the
Supplementary Decision and Report on Objections and
challenged ballots last mentioned which request was
denied by the Board on or about August 14 on the ground
that the request "raises no substantial issues warranting
review."
The challenged ballots being opened and examined, the
Regional Director, on August 18, filed his revised Tally of
Ballots finding that all 12 challenged ballots had been cast
for the Union, thereby increasing the total ballots for the
Union to 34 and 13 against that organization . On August
24, the Board's Acting Regional Director certified the
'All events herein occurred in 1967 unless otherwise specified
C. H. SPRAGUE & SON CO. 383
Union as collective-bargaining representative of the unit
described in his Decision of April 24.
By its answer, and at the hearing herein, Respondent
admitted that on or about and since September 1, 1967, it
has refused to bargain collectively with the Union in
respect to rates of pay, wages, hours and conditions of
employment of the employees in the certified unit
described above. At the hearing before me, Respondent's
counsel, consistent with Respondent's contention in the
representation proceeding that its "winter drivers" should
be excluded from the unit, stated that "the refusal [to
bargain] is based completely upon the fact that the
[certified] unit is not appropriate." That issue, however,
was raised and fully litigated by Respondent in the
representation proceeding in which the duly authorized
Regional Director ruled that the unit under attack was
and is an appropriate unit, a ruling which was sustained
by the Board on a requested review thereof by
Respondent.
It is and has been well established law that, absent
newly discovered or previously unavailable evidence, or
special circumstances, an employer may not relitigate
before a Trial Examiner, in the subsequent unfair labor
practice proceeding, issues which were litigated and
decided in a prior related representation proceeding.
Worcester Woolen Mills v N L.R B., 170 F.2d 13, 16
(C A 1), N L R.B. v Aerovox Corporation. 389 F.2d 475
(C.A. 4); The Natural Gas Utility District, 170 NLRB
No. 156. Here there is no suggestion of newly discovered
or previously unavailable evidence, or of special
circumstances, to require further or renewed consideration
of the appropriateness of the certified unit. In that state of
the record, I conclude that by admittedly refusing about
and after September 1, 1967 to bargain collectively with
the Union as the representative of the employees in the
certified unit described above, Respondent violated
Section 8(a)(5) and (1) of the Act.'
As previously indicated, Respondent is engaged in the
sale and transportation of petroleum products. Its business
being highly seasonal in nature, the size and number of its
truckdriver personnel is not constant. Thus, Respondent
has a permanent complement of approximately 25
year-round employees but, due to increased demands for
petroleum products during the winter months, it utilizes,
on an average, about 25 additional drivers to supplement
its permanent force during that season. Some of the
winter drivers begin working in September, but the
majority start in October and November. Winter drivers
start leaving in March with the bulk leaving in April and
May. Of the winter drivers who worked during the winter
of 1966-67, almost 80 percent worked during the previous
winter and over 60 percent had at least 3 years' prior
winter service with Respondent The names of all drivers,
regardless of whether they are classified as winter drivers
or permanent drivers, remain on a driver roster-board
year round, arranged in the order of their date of hire.
Prior to the 1967-68 winter season, when additional
drivers were needed, it was Respondent's policy, as will
hereafter appear in greater detail, to recall and reemploy
drivers who worked during the previous winter.
'Assuming , arguendo , that Respondent had a good faith doubt as to the
appropriateness of the unit , it is now well established that a good faith but
erroneous doubt as to such appropriateness is not a defense to an otherwise
meritorious charge of refusal to bargain United Aircraft Corporation v
N L R B , 333 F 2d 819 (C A 2), cert denied 380 U.S 910, Florence
Printing Co, 145 NLRB 141, enfd 333 F 2d 289, 291 (C A 4).
The record conclusively establishes that it has been
Respondent's consistent practice, prior to the winter
season of 1967-68, to require each winter driver to file a
written employment application only when he is first
hired, but not when he returns in subsequent years David
Bell, Respondent's terminal manager from April 1954 to
July 1967, so testified, as did employees Huckins, Abbott,
Thompson, and Colby, who had been employed in prior
winters ranging 2 to 7 years. It was not until the approach
of the 1967-68 winter season, following the representation
election, that George Varney, who succeeded Bell as
terminal manager in July 1967, required that all who
desired employment in the following winter file written
applications as new employees regardless of their prior
winter employment by Respondent. Thus, Varney, on or
about October 1, 1967, told Wesley Thompson, employed
by Respondent as a winter driver for 6 years, that he
would "be starting as a new employee, that there would
be no more seniority." Parker Colby was told
substantially the same thing Employees were also told by
Varney, contrary to the previously established practice,
that they would be required to sign notices at the close of
each winter season acknowledging that they had
completely severed their employment relationship with
Respondent, the effect of which would be to unequivocally
foreclose any right to seniority if they should be employed
in following seasons
The Union having been certified on August 24, 1967, as
collective-bargaining representative of all of Respondent's
drivers, I conclude that by thereafter (a) requiring its
former winter drivers to file new written employment
applications depriving them of established seniority rights,'
(b) requiring winter drivers to sign the unequivocal
termination notice described above, without first
conferring or negotiating with the Union with respect
thereto, Respondent further violated Section 8(a)(5) and
(1) of the Act
C. The Alleged Violations of Section 8(a)(3)
The complaint alleges that during the months of
October and November 1967, Respondent failed and
refused to recall and to reemploy the 19 employees named
in the margin' all of whom, the testimony discloses, had
been employed by Respondent during the winter of
1966-67, because they had joined or supported the Union
By its answer to this allegation, Respondent denied that it
had any obligation to recall any of these employees but
also denied that it had refused to recall them.
There being no contention that there was an express
agreement with all, or indeed any, of the 19 alleged
discriminatees that they would be both recalled and
rehired during the 1967-68 season, it was incumbent on
`Permanent drivers and winter drivers had been receiving the same
hourly rate based upon length of employment with Respondent Beginning
in their third year, winter drivers had been receiving sick, holiday and
vacation pay, and Blue Cross-Blue Shield benefits
7Franklm Abbott, Patrick Bossie, Wallace Bragg, Parker Colby,
Everett Day, Walter Edgecomb, Edward Edwards, Ronald Henderson,
Robert Hodges, John Huckins, Warren Leighton, Louis Lemay, Jr,
William Lindley, James Munroe, Anthony Rollins, Kenneth Rollins,
Alfred Scott , Wesley Thompson, Albert Wiggin
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel to establish by a preponderance of
the evidence either that all of these 19 men applied for
and were denied such reemployment, or that it was
Respondent's established policy or practice to itself
summon or recall for winter employment all the drivers
employed during the previous winter, and that it failed to
do so prior to the 1967-68 winter season This analysis,
though not expressly proclaimed, is apparently the theory
of the complaint which alleges not merely that
Respondent refused to reemploy these 19 men because of
their union activities or support, but that it failed and
refused to "recall" them for the same reason!
In support of the General Counsel's theory, Bell,
Respondent's terminal manager from 1954 to July 1967,
credibly and repeatedly testified that during each summer
he knew where the winter drivers of the year before were
employed and "called" them in the order of seniority to
determine whether they would be available for the
following winter Pettipas admitted that at the
representation hearing he truthfully testified that "Bell
would inform the winter dnvers of the Company's policy
to call them back each fall" and "that the Company
attempts to rehire drivers from prior seasons." At the
hearing before me, Pettipas testified that it is
Respondent's "contention that the winter drivers of
1966-1967 who were not called back in 1967-68 were not
called back solely because they were not available . and
if they were available [Respondent] would have called
them back, . . . there is no other reason why they were
not called back " At another point in his testimony, when
he was specifically asked why the 19 alleged
discnminatees named in the complaint were not hired for
the 1967-68 winter season, he testified it was because they
"didn't apply for employment or they were working
somewhere else at the time."
Though it is the contention of the General Counsel that
Respondent failed and refused to adhere to the policy and
practice found immediately above with respect to all 19 of
the alleged discriminatees, there is a complete lack of
proof that Respondent failed and refused to recall the 13
alleged discriminatees named in the margin below' None
of them appeared as a witness, nor was any explanation
offered why they failed to do so To give further
consideration to the allegations pertaining to these men
would require me to assume or infer that Respondent
failed and refused to call these men which, of course, I
cannot do.'° For all that appears from the record, these
men may have been offered and rejected employment,
they may have moved away or been disabled. It is not for
me to speculate why these men did not find themselves in
Respondent's employment during the winter in question
in arriving at my conclusion, I am also not unmindful
that Respondent by its answer denied that it had any
obligation to recall any of these employees That
assertion, however, does not warrant a finding or inference
that the men, or at least some of them, were not, in fact,
recalled or offered employment. This is especially true in
light of Respondent's pleaded denial "that it has refused
to recall" any of these men. The burden rests upon the
'According to Webster's New International Dictionary, to "recall"
means to call back , to summon to return "
'Bossie, Bragg, Day, Edwards, Henderson, Hodges, Leighton, Lemay,
Lindley, Munroe, Kenneth Rollins , Scott, and Wiggin
"in arriving at this conclusion , I have given , consideration to
Respondent ' s unlawful demand prior to the 1967-68 season that winter
drivers file applications for employment as new employees This factor,
however, warrants no inference that reemployment of the men was not
offered to them
General Counsel to establish that refusal and he has failed
to do so It will, therefore, be recommended that the
allegations of the complaint pertaining to these 13 men be
dismissed.
The remaining six alleged discriminatees" all testified,
and their testimony is undisputed that they personally
made applications for reemployment prior to the 1967-68
winter season. In addition to the findings heretofore
entered pertaining to Respondent's established policy and
practice of recalling former winter drivers, Pettipas
unequivocally and repeatedly testified that there is no
"question that the Company would like to have the men
back that had worked for them before satisfactorily." In
that state of the record, it became incumbent on
Respondent to go forward with evidence to establish a
valid reason why it failed to reemploy these six men.
In this respect, when Pettipas was asked by me whether
he knew why any of the 19 alleged discnminatees were not
employed, he testified it was because they "didn't apply
for employment or they were working somewhere else at
the time, . that is the only reason." That defense,
however, is without merit with respect to the six men
presently under consideration because they expressly
applied for and were denied reemployment.
Varney, who Pettipas named as the person in his
organization who could "tell why [the 19 alleged
discriminatees] were not employed," testified that of the
men who signed applications for work he recommended
that Abbott, Edgecomb and Kenneth Rollins not be hired
because they were "abusive of equipment " Varney's
testimony in this respect must be evaluated in light of the
fact that he did not become terminal manager until the
summer of 1967 and that his conclusionary testimony is
unsupported by any objective evidence Varney had no
knowledge why the remainder of those who applied for
work were not rehired, that decision, he testified, was
made "by the officers of the Company."
With respect to Varney's reason for not employing the
three men named immediately above, Bell, Respondent's
terminal manager for 14 years prior to the summer of
1967, testified that "all of the winter dnvers for the
1966-67 season . . perform[ed] their work satisfactorily."
Though Bell reprimanded three other named employees,
with whom we are not concerned, for their maintenance of
equipment, he had no reprimand of Abbott, Edgecombe,
and Kenneth Rollins in that respect Bell further testified
he does not recall that in the last 3 years of his
employment he ever complained about any winter driver
to either Pettipas or Varney On the entire record I find
that Respondent's refusal to employ the six men now
under consideration was not occasioned by the reason
assigned by Varney.
Notwithstanding all that has been found above, the
burden still remained on the General Counsel to establish
by a preponderance of the evidence that the refusal to
employ was discnminatorily motivated. An employer has
the right to hire or refuse to hire an employee for any
reason, or indeed for no given reason, except only that he
cannot refuse to hire or rehire an employee in order to
encourage or discourage membership in, or support of, a
labor organization. The ultimate issue therefore is whether
Respondent refused to rehire the six winter drivers
presently under consideration for the single reason
proscribed by the Act. While the burden rests on the
General Counsel to so establish, realism and human
experience requires recognition that, absent a valid reason,
"Abbott, Colby, Edgecomb , Huckins, Anthony Rollins, and Wiggin
C. H. SPRAGUE & SON CO. 385
an employer welcomes the return to employment of his
experienced temporarily laid-off employees . Indeed,
according to Pettipas, it is "a policy of the Company,
whenever possible, to rehire the men who worked in the
prior season" and that Bell informed the winter drivers
"of this normal procedure "
Why then were these six men not employed? The only
answer and reason supplied by the record with respect to
four of them is found in the Regional Director's
Supplementary Decision and Report of July 28, 1967, by
which Respondent was made aware that these four men,
Abbott, Colby, Edgecomb, and Wiggin had voted for the
Union. On the entire record I find that these men were
denied employment by Respondent because they had so
voted , and that Respondent thereby violated Section
8(a)(1) and (3) of the Act
Though the record fails to disclose a valid reason for
Respondent ' s refusal to hire Huckins and Anthony Rollins
who expressly applied for and were denied employment,
that failure creates, at most, only a suspicion that the
denial was imposed for the proscribed reason . There is not
a scintilla of evidence that either of these men were
engaged in any union activities, gave support to that
organization , or that Respondent was aware how they
voted at the election . Absent such evidence, I am
constrained to recommend dismissal of the allegations of
the complaint charging that these two men were denied
employment in violation of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
Respondent ' s activities set forth in section III, above,
occurring in connection with Respondent ' s operations
described in section I, above, have a close , intimate, and
substantial relation to trade, traffic , and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce
Upon the basis of the foregoing findings of fact, and on
the entire record in the case, I make the following.
CONCLUSIONS OF LAW
1. By threatening an employee with loss of employment
if the Union was voted in, and by promising another
employee advancement on its seniority list if he would
vote against the Union , Respondent interfered with,
restrained and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, thereby
violating Section 8(a)(1) thereof.
2 All truckdrivers , including winter drivers and the
dispatcher of Respondent, employed at its Portsmouth
terminal , excluding office clerical employees , guards and
supervisors as defined in the Act , constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act
3. At all times on and after August 24, 1967, the Union
has been the representative for the purposes of collective
bargaining of the employees in the unit described above
and, by virtue of Section 9(a) of the Act, has been and
now is the exclusive representative of all the employees in
said unit for the purposes of collective bargaining in
respect to rates of pay, wages, hours of employment, or
other terms or conditions of employment
4. By refusing on or about September 1, 1967, and at
all times thereafter, to bargain collectively with the Union
in respect to rates of pay, wages, hours and other
conditions of employment of the employees in the
above-described unit , Respondent violated Section 8(a)(5)
and (1) of the Act.
5. By unilaterally deviating on and after August 24,
1967, from its established policy and practice of recalling
its winter drivers for employment in the following winter
season , Respondent violated Section 8(a)(5) and (1) of the
Act.
6. By unilaterally deviating, on and after August 24,
1967, from its previously established practice by thereafter
requiring former winter drivers to sign applications as new
employees, and by unilaterally requiring its winter dnvers
at the close of the winter season to certify, unwillingly,
that they had permanently severed their employment
relationship with Respondent , in both instances thereby
affecting their established seniority rights, Respondent
violated Section 8(a)(5) and 8(a)(1) of the Act.
7. By refusing and failing to reemploy Franklin Abbott,
Parker Colby, Walter Edgecomb, and Albert Wiggin for
the 1967-68 winter season because they had voted for the
Union, Respondent violated Section 8(a)(1) and (3) of the
Act
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Except as concluded above, the General Counsel has
failed to establish the remaining allegations of the
complaint by the necessary preponderance of the evidence
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices , I recommend that it be required to
cease and desist therefrom and that it take certain
affirmative action outlined below which I find to be
necessary to remedy and to remove the effects of the
unfair labor practices and to effectuate the policies of the
Act.
Since it has been found that Respondent unlawfully
refused to employ Abbott, Colby , Edgecomb , and Wiggin
during the 1967-68 winter season , my Recommended
Order will require Respondent to make these four
employees whole for any loss in wages or other
compensation they may have sustained by reason of
Respondent ' s unlawful action by paying them such
amounts as they would normally have earned between the
date of their application for employment in 1967 and the
end of the 1967-68 winter season . Such backpay shall be
computed on a quarterly basis in the manner established
by the Board in F W Woolworth Co, 90 NLRB 289,
and shall include interest at the rate of 6 percent per
annum as provided in Isis Plumbing & Heating Co , 138
NLRB 716. It will further be required that Respondent
offer these four men employment for the 1968-69 winter
season.
[Recommended Order omitted from publication.]