C.J.R. Transfer, Inc., C.J. Rogers Transfer, Inc.

National Labor Relations Board - Board Decisions

May 18, 1990

298 N.L.R.B. 579 (N.L.R.B. 1990)

C.J.R. TRANSFER 579
C.J.R. Transfer , Inc., C.J. Rogers Transfer, Inc. and
Local 247, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers
of America , AFL-CIO and Local 332, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, Party in Interest . Cases 7-CA-27477 and
7-RC-18426
May 18, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 21, 1989, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions relating to the dis-
charge of David Wandoff and the issuance of a
bargaining order , and a supporting brief, and the
General Counsel and the Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified, and to adopt the recom-
mended Order.
1. In adopting the judge's conclusion that the
Respondent violated Section 8(a)(3) and (1) by dis-
charging David Wandoff because of his union ac-
tivities, we agree with the judge that the General
Counsel has established a prima facie case with re-
spect to this allegation, in accordance with the
Board's decision in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), and, for
the following reasons, we agree that the Respond-
ent has not rebutted the prima facie case. The Re-
spondent has not established that, absent his union
activity, Wandoff would have been discharged for
failing to notify his own supervisor of his October
26, 1987 accident.2 In this regard, we note that
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In agreeing with the judge that Local 247 attained majority status
among the Respondent 's unit employees by August 10, 1987, we note
that it is clear from the record that the employees knew they were apply-
ing for membership in Local 247 by signing the cards , and we further
note that no exceptions were filed concerning the judge's finding that the
authorization cards, which were signed by a majority of unit employees,
were valid.
2 We agree with the judge for the reasons stated by him that the Re-
spondent is bound by its counsel's statements at the hearing that Wandoff
Wandoff acknowledged the accident when it was
brought to his attention by the job superintendent
of the joint venture at the construction site, and
that he provided all, the necessary information as
well as a written report to the field office manager.
Moreover, the record shows that in at least one
other instance an employee was not disciplined or
discharged for failing to notify the Respondent of
an accident.3 In addition, although in its letter noti-
fying Wandoff of his discharge the Respondent
also cites as a reason for its action Wandoff's drill-
ing of holes in the dashboard of his truck, we note
that Wandoff had drilled the holes approximately
1-1/2 years before his discharge and that the Re-
spondent had been aware of the holes since that
time.
2. The judge dated the bargaining order from
August 22, 1987, when the Respondent began its
unlawful conduct by transferring its drivers to the
Flint terminal. We note, however, that as of that
time the Respondent recognized and had a current
collective-bargaining agreement with Local 332.
Because the judge found that the Respondent vio-
lated Section 8(a)(2) as of the date of Local 332's
disclaimer of interest in representing the Respond-
ent's employees, with no exceptions filed concern-
ing that finding, and considering that the issue of
the lawfulness of the Respondent's initial recogni-
tion of Local 332 is not before us, in the particular
circumstances of this case we will make the bar-
gaining order effective as of the date of the dis-
claimer, on or about October 23, 1987.4
was discharged not because of the accident itself but rather because of his
failure to report it to his supervisor.
Member Cracraft agrees with her colleagues that the record does not
support the Respondent 's contention that it fired Wandoff because he
failed to report the accident or for drilling holes in his truck's dashboard.
However, she finds it unnecessary to rely on the judge's finding that the
Respondent is bound by its counsel 's statements at the hearing that the
accident itself was not part of the Company's defense At least where the
parties litigated additional reasons for the discharge and therefore did not
rely on any preclusive effect of counsel 's statements, she would examine
the merits of further defenses.
Member Cracraft would find, however , that the Respondent 's shifting
explanation for the discharge serves to buttress the judge 's conclusion
that the Respondent failed to rebut the General Counsel 's prima facie
case. The record shows that other drivers had accidents similar to Wan-
dofPs and had not been fired or disciplined . Assuming that the nature of
the accident , its location, and the failure to report the accident were rea-
sons for the discharge , she would find that the Respondent failed to show
that Wandoff would have been discharged absent the protected activity
Thus, the Respondent has failed to rebut the General Counsel's prima
facie case
a Under these circumstances , whether Main, Wandoff's supervisor,
knew of the accident as of the date it occurred is irrelevant.
4 There is no merit to the Respondent's contention that the Regional
Director abused his discretion by allowing Local 332 to withdraw from
the election conducted in Case 7-RC-18426. Local 332 disclaimed inter-
est in representing the unit employees and asked that its name be re-
moved from the ballot . The Regional Director had little choice but to
grant the request. A union cannot be compelled to represent employees
against its wishes; a fortiori, it cannot be forced to compete with another
Continued
298 NLRB No. 78
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 9 and 10 and substi-
tute the following.
"9. Since on or about October 23, 1987, when
Local 332 disclaimed interest in representing the
Respondent's employees, Local 247 has been the
exclusive bargaining representative of Respondent's
employees in the unit described above in paragraph
7 for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
"10. Since on or about October 23, 1987, Re-
spondent has refused to recognize and bargain with
the Union as the exclusive collective bargaining
representative of its employees in the unit de-
scribed above in paragraph 7, in violation of Sec-
tion 8(a)(5) and (1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, C.J.R.
Transfer, Inc., and C.J. Rogers Transfer, Inc., Mel-
vindale and Flint, Michigan, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
union for the representation of employees it chooses not to represent.
There is similarly no merit to the Respondent 's claim concerning alleged
confusion among the employees about the choice in the Board election,
particularly in light of the Respondent's contribution to any such confu-
sion through its unlawful support of Local 332.
Richard M. Whiteman, Esq., for the General Counsel.
Robert J. Solner, Esq., of Birmingham, Michigan, and Ga-
briel Hall, Esq., of Southgate, Michigan, for the Re-
spondent Employer.
John R. Canzano, Esq., of Southfield, Michigan, for the
Charging Party Petitioner.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. I
conducted the hearing in this consolidated proceeding in
Detroit, Michigan, on June 28-30 and July 19, 1988.
Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO (the Petitioner or Local 247) filed the petition
in Case 7-RC-18426 on August 19, 1987, and the origi-
nal charge" in Case 7-CA-27477 on November 13, 1987.
Following the filing of the petition and pursuant to a
Decision and Direction of Election issued by the Region-
al Director for Region 7 on October 17, 1987, an elec-
tion by secret ballot was conducted on November 13,
among the sand and gravel truckdriver employees of
C.J.R. Transfer, Inc., and C.J. Rogers Transfer, Inc.,
(collectively called the Respondent, the Employer, or
the Company) employed at the Flint and Melvindale,
Michigan facilities. The tally of ballots reflects that the
employees cast 8 ballots for the Petitioner and 13 ballots
against the Petitioner and 4 challenged ballots which
were insufficient in number to affect the results of the
election. On November 17, the Petitioner timely filed ob-
jections to conduct affecting the results of the election.
Following the filing of the charge, the Regional Direc-
tor, on December 29, issued a consolidated document en-
titled:
I. Complaint
II. Supplemental Decision on Objections2
III. Order Consolidating Unfair Labor Practice
and Objections for Hearing
IV. Notice of Consolidated Hearing
V. Rules Respecting Answer to Complaint
The complaint alleges the discriminatory transfer of
the unit employees and the discharge of one of them in
violation of Section 8(a)(3) and (1); numerous independ-
ent 8(a)(1) violations; and the continued unlawful recog-
nition of Local 332, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Local 332 or the Intervenor) in violation of Section
8(a)(2) and (1) of the Act. The complaint includes a re-
quest for a bargaining order.
In his supplemental decision on objections, the Region-
al Director stated:
In view of the interrelated nature and timing of
certain of the unfair labor practices alleged in the
Complaint which accompanies this Report, with the
above Objections, I conclude that these matters, the
Objections and the unfair labor practices, should be
heard simultaneously by an Administrative Law
Judge of the Board. The conduct alleged in the
Complaint in Paragraphs 9, 10, 11, 12, 15 and 16,
and respective subparagraphs occurring during the
critical period, which is not specifically covered by
Petitioner's Objections, is hereby ordered to be
heard as additional objectionable conduct. Seneca
Food Corp., 244 NLRB 558 (1979); American Safety
Equipment Corp., 234 NLRB 501 (1998).
He then issued:
III. ORDER CONSOLIDATING UNFAIR LABOR PRACTICE
AND OBJECTIONS FOR HEARING
IT IS HEREBY ORDERED, pursuant to Section
102.33 of the National Labor Relations Board's
Rules and Regulations , Series 8, as amended, that
Cases Nos. 7-CA-27477 and 7-RC-18426 be, and
they hereby are, consolidated for the purposes of
hearing , ruling and decision by an Administrative
Law Judge, and that thereafter , Case No. 7-RC-
18426 be transferred to and continued before the
Board in Washington, D.C., and that the provisions
of Section 102.46 and 102.69 (f) of the above-men-
1 Local 247 amended the charge on December 17, 1987, January 29,
1988 and May 26, 1988. 2 Petitioner's request to withdraw Objections 2(c) and 4 is granted
C.J.R. TRANSFER 581
tioned Rules shall govern the filing of exceptions
following issuance of the Administrative Law
Judge's decision.
All parties were represented at the hearing and were
afforded full opportunity to be heard and present evi-
dence and argument.' General Counsel and Respondent
filed briefs. On the entire record, my observation of the
demeanor of the witnesses and after giving due consider-
ation to the briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, the answer admits, and I find
that Respondent is, and has been at all times material, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
Background
On May 19, 1986, Respondent granted recognition to
and entered into a collective-bargaining agreement with
the Intervenor covering the rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment of its employees in a unit consisting of all of its
sand and gravel truckdrivers employed at its Flint and
Melvindale facilities. However, as of May 19, 1986, Re-
spondent had not yet hired any employees. The first em-
ployee in the unit was hired on May 20, 1986, and there-
after some 22 additional drivers were hired, most of
them to work out of Melvindale.
The Organizing Campaign-The Transfer of
Employees-8(a)(1) and (3) Violations
In early August 19874 Local 247 undertook an organi-
zational campaign and by August 10 had succeeded in
signing up a majority5 of Respondent's unit employees.
As noted, the petition was filed on August 19 and was
served on August 20.
The day after Respondent was served with a copy of
the petition, on August 21 at about noon, Jerry Main, the
trucking boss and admitted supervisor, told driver-em-
ployee David Wandoff that he, Wandoff, would no
longer be working out of Melvindale; that because of
him, all of the trucks were being transferred to Flint.
Wandoff had been quite active in the organizing cam-
paign and had solicited several drivers to sign Local 247
a General Counsel's motion to correct transcript is granted.
4 All dates are in 1987 unless otherwise indicated.
5 Respondent would have me find a number of membership cards in-
valid based on the fact that after they were signed, some of them were
altered by having added to them the numbers of Teamsters Locals to
which the signer had previously belonged. I find the additions immaterial
and the cards valid
membership cards. That evening Main advised a second
driver, Randall Williams, that he too, along with the
other drivers, would be transferred to the Flint facility
the following day because "there is a problem." Main
subsequently advised two other drivers of their transfers
without, apparently, offering any explanation as to the
reason for the transfers.
On Saturday morning, August 22, as the employees re-
ported for work at the Melvindale terminal, they were
ushered into the office in small groups by Jerry Main
who told them that Tony Leoni was in there and wanted
to speak with them. Tony Leong is the brother of the
president of the Respondent, Michael Leoni.7 Michael
was out of town at the time and had requested Tony to
advise the drivers, on his behalf, in his absence, of their
transfer to Flint. Tony was clearly Michael's agent for
this purpose.
Tony told one group of three or four drivers that they
were to drop off their trucks at Flint rather than at Mel-
vindale that evening because he was having union trou-
bles and he was not going to have any union telling him
how to run his business. He told these drivers that they
would never be coming back to Melvindale because he
was going to build a shop in Holly,8 park all the trucks
up there, and work on them there. He added that he
knew that he would have several drivers leave his em-
ployment because of the additional travel that would be
necessary but that was what he was going to do.
To a second group of five or six drivers invited into
the office, Tony said that they would be parking in Flint
rather than in Melvindale that night because there was a
problem with the Detroit Local and the only way he
could get around it was to park his trucks up at Flint.
He told the drivers that he had bought the trucks but
now could not operate them where and how he wanted
because the Detroit Local was not willing to work with
him. He added that he would just have to take the trucks
to Flint. He said he was going to build a pole barn9 up
in Holly and would park the trucks up there forever if
he had to. Employee John Kloka then complained that it
was not right for the drivers to be sent up to Flint; that
the drivers had been hired to work out of Melvindale;
and that nothing had ever been said about going to Flint.
Tony replied that he did not want to send the trucks to
Flint either but he could not work the trucks out of Mel-
vindale without Local 247 on him. He said that he
would put the trucks where Local 247 could not bother
him. Kloka persisted, stating that it would be a burden to
work a 13- or 14-hour-day, then have an extra 3 hours
added on by having to drive from Detroit to Flint and
back everyday. Tony answered that Kloka should get his
6 I find Tony Leoni to be a supervisor under the Act The record re-
flects that he reprimanded an employee on at least one occasion and re-
moved hum from the job; that he personally hired another employee; and
that he participated in the making of important managerial labor-related
decisions.
7 Hereafter Tony and Michael Leom will be referred to in this section
only as Tony and Michael.
8 Site of a sandpit from which Respondent had been hauling sand
down to Detroit and to which it was hauling dirt from the Detroit area.
Holly is located approximately 10 miles south of Flint.
9 A garage where trucks are maintained and repaired.
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mind set for it because that was what he was going to do
and if Kloka could not handle it, he should go find a job
somewhere else.
At one point, after Tony stated that he was going to
move his trucks to Flint, he conceded that he knew that
he would lose some of the drivers by doing so, but did
not want to get involved with Local 247. He then asked
the drivers why they were "looking" to Local 247.
Kloka replied that the employees needed better insurance
coverage.
Another group of drivers invited into Main's office to
hear the news of the transfer included Wandoff. To this
group, Tony said that there were a few people in the
Company who would try and screw it up for everyone
else, so he was going to send the trucks to Flint to take
care of the union problems. He said that Wandoff and
one other employee were responsible for the trucks
going to Flint but that he would get the best of Wandoff.
According to one witness, an argument broke out be-
tween Tony and Wandoff during which Tony stated,
"Dave, you're nuts. You should have help by a doctor or
someone. You're spreading malicious rumors; you're
starting trouble; and I'm going to own your ass for the
rest of your life."
Tony, during this particular meeting , made comments
about Local 247 as he had during other meetings held
with the drivers that morning. He said he was not going
to let anybody tell him what to do with his trucks. He
was going to move the trucks to Flint and they would
stay there. He told those present that he was the boss
and that was the way it was going to be. Tony explained
that he already had building materials and a fence on
order to build a yard or pole barn in Holly at the sandpit
but, for the time being, the drivers would work out of
Flint.
Still a fourth group of drivers was called in to meet
with Tony early Saturday morning , August 22. Tony
told these employees that he had some instigators and
troublemakers that were causing a lot of trouble for ev-
erybody, and that he felt that he had no choice but to
move the trucks to Flint, permanently. He said there
were troubles between the Union and Company and that
he had to take the trucks to Flint for the duration, until
the matter was resolved. As in the meetings with the
other drivers, Tony mentioned his intention of building a
new terminal in Holly.
Finally, in yet another meeting that morning with four
or five other drivers, Tony told them that he was
moving his operations to Flint and setting up his garage
at the Holly sandpit. He warned that the next time prob-
lems with the Union occurred the trucks would go up to
Flint and not come back.
In addition to the meetings herein described, Tony
also spoke on an individual basis with certain drivers but
for the most part reiterated to them what he had'told the
groups of drivers during the meetings. In each instance,
Tony told the drivers to leave their trucks in Flint Satur-
day night and that transportation would be provided
back to Melvindale where most of the drivers had
parked their personal vehicles.
That evening, all the drivers left their trucks in Flint
and were provided rides by Respondent back to Melvin-
dale in a chartered bus. Thereafter, for the next 9 weeks,
Respondent required all of its drivers to park their trucks
at the end of the day in Flint. This was a tremendous in-
convenience to them since most lived much closer to
Detroit than to Flint and were not compensated for the
additional time and expense of travel. Virtually all the
drivers who testified indicated that after August 22 they
continued to haul, for the most part, in the Detroit area,
just as they had before their transfer from the Melvindale
facility to Flint.
During the 9-week period that the trucks were parked
in Flint, employee Kyle Cox asked Jerry Main, on a few
occasions, how long he felt the trucks would be parked
in Flint. Main replied that he had no control over it; that
he didn't really know how long the trucks would be
there; then suggested that the trucks would remain in
Flint until the Union problem was settled.
In early September, as David Wandoff was gasing up
his truck at the end of the day at the Flint facility, Jerry
Main called him over and told him to go in and see Wil-
liam Leoni, Sr., a member of management and an agent
of Respondent.10 Once in the elder Leoni's office, Wil-
liam Sr . engaged Wandoff in a lengthy conversation
during which William Sr. expounded on the history of
Respondent, benefits received by its employees, and its
relations with Locals 332 and 247. He told Wandoff that
he did not want anything to do with Local 247 and that
he did not, in particular, care for Joe Aloisio, its repre-
sentative, with whom he had had a "run in" years back
at a jobsite in Ann Arbor. As for Local 332, William Sr.
explained that there had been a contract between Re-
spondent and the Intervenor years back and he felt that
Respondent was automatically obligated to bargain with
that labor organization.
During this conversation, the subject of medical bene-
fits came up. Inasmuch as Wandoff was covered by the
medical insurance plan where his wife worked, he was
receiving dual coverage. He asked William Sr. if there
was some other form in which he could take the equiva-
lent of Respondent's medical benefits, suggesting disabil-
ity insurance or additional payments into his IRA ac-
count. William Sr. agreed to discuss the matter with his
son, Michael.
On September 28 a hearing was held in Case 7-RC-
18426. Wandoff was one of two employee witnesses who
testified. The hearing resulted, eventually, in the issuance
of a Decision and Direction of Election in which it was
decided that, contrary to the position of Respondent, the
contract between Respondent and Local 332 was not a
bar.
Some weeks after their first conversation, William Sr.
in late September or early October, invited Wandoff into
his office for a second discussion. On this occasion, he
related to Wandoff how he had talked to his, William
1° William Leom, Sr. and his wife were Respondent's incorporators.
He is the father of Michael, William, Jr., and Tony, the president, secre-
tary, and vice president of Respondent, respectively He, along with his
sons, and Jerry Main were responsible for the trucks being transferred to
Flint in August. His wife owns the stock in Respondent while he over-
sees its financial activity and has signed collective-bargaining agreements
on its behalf
C.J.R. TRANSFER
Sr.'s, wife about the situation and how she had said that
she did not understand why the employees were unhap-
py since they were making good money. In support of
his wife's argument, William Sr. showed Wandoff one of
his, William Sr.'s, paychecks, indicating that he was
making less money than Wandoff. Wandoff, however,
stated that he knew that William Sr.'s check was only a
draw and that management split the profits from the jobs
at the end of the year. Then the conversation moved to
the fact that the trucks were being parked in Flint as op-
posed to Melvindale. William Sr. then stated that he did
not see any reason why the men that wanted to work
out of Melvindale could not work out of Melvindale, and
the ones that wanted to work out of Flint, could not
work out of Flint. William Sr. said that he would talk to
his son, Michael, about it again. During this discussion
William Sr. again told' Wandoff that he absolutely did
not want Local 247 involved with his vehicles or his
men.
On October 14, the Regional Director issued his Deci-
sion and Direction of Election finding that the Local 332
contract was not a bar. Shortly thereafter, Jerry Main
approached employee Richard Near while both were
alone in the Melvindale yard. Main asked Near which
way he was going to vote in the forthcoming union rep-
resentation election. About the same date as -this incident,
while Near was on Miller Road in Flint, William Sr. ap-
proached him, introduced himself, then asked Near what
he thought about the two unions. He said it was up to
the drivers which way the vote would go and whether
or not they would have money in their pockets. Near
took William Sr.'s remark to mean that the drivers were
not to vote for Local 247.
On October 23, Howard Malpus, president of Local
332, wrote the following letter to the Regional Office of
the Board:
I am writting [sic] in response to our telephone
conversation on this date pertaining to the petition
withdrawal for Local 332 on C.J.R. Transfer Inc.
Teamsters Local Union 332, by virtue of this
letter, wishes to declare we are disclaiming interest
in the decision and direction of the NLRB Petition
for election in case 7-RC-18426.
On the morning of October 24, Respondent announced
to its drivers, without explanation, that henceforth the
trucks would once again work out of Melvindale except
for about five employees who preferred to work out of
Flint, chiefly because they lived closer to that city.1'
Those who remained in Flint had worked out of Flint
prior to August 22.
About October 27, 2 weeks after their first discussion,
Main and Near met at the Highway 696 project. Main
once again asked Near which way he was going to vote.
11 An exception to the general rule was Wandoff who requested to
remain at the Flint terminal because he had recently moved his residence
to a point equidistant from Flint and Detroit, and preferred to work out
of Flint. Main refused Wandoff's request on grounds that, as alternate
steward, he was needed in Melvmdale where the majority of employees
worked.
583
Meanwhile, according to Respondent's attorney, Ga-
briel D. Hall, a representative of the Regional Office no-
tified him by telephone that Malpus had advised her by
phone that Local 332 was not going to participate in the
election. Hall asked her if Local 332's notice of with-
drawal was in writing and she replied, not yet. The fol-
lowing day, or shortly thereafter, the Board's representa-
tive called Hall again and said that she had received a
confirming letter from Malpus.
Hall testified that after receiving the telephone call
from the Board agent, he called Malpus who told him
that Local 332 was only withdrawing from participation
in the election and would not appear on the ballot but
was not waiving representational status. Malpus added
that Local 332 would honor the contract until the law
said he could not.12
On October 30, the Region sent the following letter to
Hall, with copies to Respondent, Local 332 and Local
247:
Gentlemen:
In its letter received on October 23, 1987, the In-
tervenor in the above matter, Local 332, Teamsters,
disclaimed interest in representing the employees in
the unit set forth in the Decision and Direction of
Election and also expressed its wish not to appear
on the election ballot.
There being no actions by Local 332 inconsistent
with its request, only Local 247, Teamsters will
appear in the official notices of election and ballot.
The employees will be asked to choose whether
they wish to be represented for purposes of collec-
tive bargaining by Local 247.
On the evening of November 7, Respondent called a
meeting of the drivers at the Melvindale facility which
was attended by virtually all the employees in the unit.
Michael addressed them and said that he had to have a
"no" vote in the forthcoming election in order for the
Respondent and its employees to keep what they had.
He added however, that if the election came out the
other way, things were going to change, that he was
going to have to do something one way or the other. He
told those present that if there was a "no" vote, a vote
against Local 247 then, after the election, he and the em-
ployees would sit down and straighten out all the prob-
lems the employees had with the contract then in effect;
that they would have a meeting and get together. He
said that if the vote went the right way, the problems the
Company and its employees had with benefits, or any
other problems, would be worked out-whatever the
drivers had to have.
At some point during the meeting, Michael asked the
drivers what their complaints, problems, or gripes were
and what he could do to straighten out the contract to
make it better for the employees. He asked the drivers if
they had any problems with their insurance. In reply, the
12 Malpus did not appear at the hearing in the instant proceeding Re-
spondent objected to his nonappearance. Attorney for Respondent was
then advised that he could subpoena Malpus if he so desired. Respondent
did not pursue the matter.
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
drivers brought up the subjects of medical insurance,
IRA, holiday pay, and vacation. With regard to holiday
pay and vacation, Michael was vague, stating only that
they would be looked into. As to the IRA, the drivers
stated that they wanted their IRA at a higher rate but
Michael replied that he could not answer any questions
like that or promise them anything until after the elec-
tion. He added, however, that if the vote went the right
way, the IRA would be moved to the maximum. Jerry
Main testified that whenever questions about IRA came
from the floor, Michael only said that he could not
promise anything at the time.13
With regard to the subject of insurance, several em-
ployees testified. According to Paul Fisher, Michael
talked about deductibles and the lack of coverage in the
existing plan. He agreed that the benefits were miserable
and said that the drivers should blame it on his youth
and ignorance; that he was young and did not have a
family himself. He added that he wanted to improve the
insurance coverage but could not promise that he would
improve it before the election. James Hiveley testified on
the subject that Michael said at this meeting that he
could better the employees insurance; that he could take
care of the drivers and make things better all around;
and as to insurance, that he would look into it; but that
he needed a "no" vote. Employee Kyle Cox testified
merely that when the employees indicated that they
wanted better insurance, Michael said that he could not
say anything about it because it was before the election.
Driver Randall Williams testified that Michael listened to
the problems which employees Rennie Sims and Bob
French had with their insurance. In reply, Michael said
that Respondent was going to have "to get on that right
away." He added that if there were a "no" vote, Re-
spondent would look into it but that he could not prom-
ise anything. Driver Edward Levesque testified that Mi-
chael, on this occasion, promised the employees better
medical benefits. Driver Jack Linck testified that Mi-
chael, after stating that he had the best drivers in the
State of Michigan, said that he wanted to increase their
medical insurance and wanted to work with them on it
in order to get better insurance but could not promise
them anything. Employee Charles Pitt Jr. testified that,
at this meeting, Michael entertained questions from the
drivers about benefits and replied that he would try to
get the drivers insurance and optical and dental care but
was not guaranteeing anything. Driver Rennie Sims testi-
fied that when questions about insurance came up, Mi-
chael said that he would try to get them better insurance
if that was a problem, but would not promise them any-
thing at that time. According to driver Gregory Thomas,
when Michael heard from the employees that insurance
was a problem, he stated that whatever it takes to satisfy
them, that is what would be done.
Another subject brought up at this meeting concerned
the signing of the road builders' contract. Paul Fisher
testified that Michael said that there would be no negoti-
ations with Local 247 on the road builders' agreement;
that he emphasized several times that there would be no
signing of the road builders' agreement with Joe Aloisio
13 1 credit the drivers' version of Michael's speech over that of Main.
and Local 247; and that the signing would be over his
father's dead body. James Hiveley testified that Michael
recounted how Joe Aloisio had approached him and said
that if he could get a road builders' contract from C.J.
Rogers Transfer, his boss would send him to Hawaii for
2 weeks. Michael added, "There is no way I can see
doing that." Kyle Cox testified that Michael said that he
could not sign a road builders' agreement with Local 247
and still operate. Then, going into detail concerning the
road builders' contract, he explained that if Respondent
signed that agreement, it would be subject to the unlimit-
ed liability provision contained in the pension fund arti-
cle, and that this was unacceptable. Randall Williams tes-
tified that Michael said that Local 247 does not want to
see him in business; that Aloisio is out to get him to sign
a road builders' agreement so that he will win a trip to
Hawaii; but that Michael does not want to sign the
agreement . Jack Linck testified that Michael Leoni, on
this occasion, said that his father would in no way sign a
contract with Local 247. Charles Pitt Jr. testified that
Michael stated that he would not sign a road builders'
contract. Rennie Sims testified that Michael said that Re-
spondent would not sign a road builders' contract with
Local 247 and that his father would not sign a contract
with Local 247. And finally, Gregory Thomas testified
that Michael Leoni said that his father would not sign a
road builders' contract with Local 247 and that Re-
spondent already had a contract with Local 332. Michael
testified that what he had said on this subject, during this
meeting, was that his father had stated that he could not
sign a road builders' agreement because of the unfunded
liability provision but had no problem living up to the
contract that he had then with Local 332. Michael also
testified that no explanation was given, at the time, as to
what was meant by "unfunded liability" but that he had
explained the meaning of the term to certain drivers pre-
viously.
During this speech, according to some witnesses, re-
marks were made concerning the sale of trucks and the
elimination of jobs under certain circumstances. Thus,
Randall Williams testified that Michael threatened that if
there was a "yes" vote, there would be 10 of Respond-
ent's trucks sent out of state. Since Williams was among
the lowest 10 drivers in seniority, he felt that he would
be one of them. Charles Pitt, Jr. recalled Michael stating
that the bottom truckdrivers in seniority would be with-
out jobs. Jack Linck testified that Michael said that he
needed a "no" vote and that if things did not go that
way, Respondent would sell the trucks. John Kloka testi-
fied that, during Michael's speech on November 7, there
were no discussions relative to the elimination of trucks.
Witnesses for Respondent, Michael Leoni and Jerry
Main, testified similarly that nothing was said, during his
November 7 speech, concerning the selling of trucks or
the moving of trucks out of state and that no questions
from the floor were raised on this subject.
With regard to where the trucks would be parked,
Edward Levesque testified that Michael stated that he
had made some mistakes but would like another chance;
that he could not get into specifics about anything he
could do for the employees because he was not allowed
C.J.R. TRANSFER
to say certain things before Vhe election; and that he
would just like to keep things the way they were. Then
he added that if the drivers did get into Local 247 there
would be some changes and things could not remain the
way they had been. It was in this context, according to
Levesque, that Michael stated that he would make things
better for the drivers, better benefits; and that they could
park the trucks any place they wanted to. Gregory
Thomas testified that Michael promised that the trucks
would be parked at the most convenient place for the
drivers if the vote went the right way.
To put all of the above remarks in context, it should
be noted that Thomas testified that Michael stated that
he hoped that the drivers all had their heads together
and knew which way they were going to go in the elec-
tion; that they were a team and had to stick together to
win. He noted that when he bought the trucks, he had
not planned on the added expense of having to pay the
benefits required by the Local 247 contract. He ex-
plained that for the employees to vote in Local 247 and
for Respondent to agree to the contract which Local 247
was proposing would be expensive; that when he bid the
jobs that the drivers were working, he bid them so that
he could get those jobs under the old, Local 332, con-
tract. He stated that for the employees to vote for Local
247, with its proposed contract, it could result in some-
thing with which he could not live. He emphasized that
he told the employees that he could not make any prom-
ises because his lawyer told him not to do so. Jerry Main
testified that Michael made no promises at this meeting
and John Kloka testified that Michael Leoni tried to
answer questions from the drivers but explained that he
could not make any firm commitments or promises.
Four or five days before the election, while Michael
was campaigning for his cause, he was at the Holly sand-
pit and engaged Jack Linck in conversation. He told
Linck that he needed a "no" vote. Linck replied that he
wanted to remain based in Flint because he would be
closer to home. Michael then said that he had no prob-
lem dealing with that but he needed a "no" vote.
During the week preceding the election, Michael cam-
paigned at the Holly sandpit. He approached most of the
drivers as they were waiting to be loaded. On one occa-
sion, he spoke with Paul Fisher and during the conversa-
tion motioned James Hiveley to come over and join
them. He then emphasized to these two employees the
importance of a "no" vote in the forthcoming election
because , "we can't sign an agreement with 247." He ex-
plained that he had to have a "no" vote to keep the team
together; and that as it was, he saw a good team, good
drivers, and good equipment, all getting the job done.
He said that the only way he could guarantee that things
would stay the same was a "no" vote.
Michael then asked Fisher if he had any complaints or
if there were any problems. The subjects of pay and
medical benefits were brought up and discussed. Fisher
stated that he was satisfied with the pay. As to the medi-
cal insurance coverage, Michael said again that he
wanted to improve the benefits but that he could not
promise that he was going to improve them before the
election took place.
585
Fisher asked Michael what he would do if there was a
"yes" vote. Michael replied that he had several things in
mind . Fisher then asked what would happen with the
trucks; whether Leoni would transfer the trucks to
WPM.'4 Michael only repeated that he had several
things in mind and could not guarantee them anything in
the case of a "yes" vote.
Charles Pitt, Jr. testified that within a week of the
election, Michael approached him on three or four occa-
sions at the Holly sandpit while he was waiting to be
loaded. Michael told him that he had to have a "no"
vote and if he did not get one, the 7 to 10 drivers with
the least seniority would lose their jobs and the trucks
would work out of Flint permanently. At the time, Pitt
was one of the drivers with the least seniority and would
have been affected by such a move.
On Wednesday, November 11, between 6 and 8 p.m.,
at the Melvindale facility, Respondent held a second
group meeting of its employees. Fifteen to twenty driv-
ers attended this meeting as well as Michael, Tony, Wil-
liam Sr., Jerry Main, and Respondent's lawyer. At this
meeting, Michael spoke first. He told those present that
the Company needed a "no" vote; that it already had a
workable contract with Local 332 which it could live
with; and that in order for the Company to continue to
grow, it would have to have the' same contractual setup
that it already had. He said that he had made some mis-
takes but he was learning the business, and if the vote
went the right way, directly after the vote they would
all get together and talk about their problems, including
getting better insurance , and try to get them resolved
just as fast as possible . He assured the drivers that the
Company would make good on whatever it promised
them-with the benefit package and retirement.
Michael then stated that there was no way, that his
father would sign a road builders' agreement with Joe
Aloisio of Local 247 and that he could not see himself
signing a road builders' agreement with Local 247 to
send Joe Aloisio on a'two weeks vacation in Hawaii. He
added that there was no way the Company could deal
with Local 247.
According to Gregory Thomas, Michael once again
stated that if the vote went the wrong way, 10 of the
trucks driven by drivers with the least seniority were
going to go out of state. At the time, Thomas was fifth
or sixth from the bottom of the seniority list. Michael
denied that anything was said by anyone at this' meeting
about moving trucks out of state.
William Sr. also spoke to the group. He told them that
the Company was doing well and that in order to keep
doing well, he would have to keep it set up the way it
was. He said that Local 247 was out to run him out of
business and had been trying for a long time to get him;
that he had been to court so many times with them; and
that he was tired of Local 247 taking him to court. He
said he had had nothing but problems with Local 247 in
past years; had had several lawsuits; and had spent a lot
14 WPM stands for William Patrick (Tony), and Michael, another sand
and gravel company which apparently operates outside the area serviced
by Respondent , sometimes out of state . Leoni denied saying anything
about trucks moving out of state.
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of money. He told those present that there was bad
blood, a feud between Local 247 and himself; that he
could not live with them and wanted no part of them.
He concluded this segment of his speech by saying that
he would have nothing to do with Joe Aloisio.
After fully describing the animosity which existed be-
tween himself and Local 247, William Sr. stated that he
would not sign the road builders' agreement with Local
247 because it was always trying to tell him what to do
with his trucks. He said he had had dealings with Local
247 through his involvement with other companies in
which he had financial interests.
William Sr. also stated that he could not sign the road
builders' contract with Local 247 and stay competitive.
Michael testified that, on this occasion, the only reason
William Sr. gave the drivers for not wanting to sign the
road builders' agreement was that it contained the un-
funded liability provision. According to Michael's testi-
mony, William Sr. told them that he did not have a
problem talking with Local 247 but that that provision
would cause the Company harm, as far as its obtaining
credit was concerned. He noted that purchase of the
trucks had been financed through Textron and Grey-
hound Leasing, and that signing of the road builders'
agreement-containing the unfunded liability provision-
could result in the placing of additional debt service on
the Company, resulting in default or in putting the Com-
pany in jeopardy of default. William Sr. testified that he
further explained the problem to the drivers by telling
them that he was reluctant to sign the road builders' con-
tract because by doing so he would automatically
become a member of the multiemployer bargaining unit
and thus inherit the unfunded liability which involves the
Teamsters' pension fund. That pension fund, William Sr.
explained to the drivers, was, actuarially speaking, un-
derfunded and any companies that became bargaining
parties to it, automatically would have that load spread
over them to the extent of the number of employees cov-
ered. It is this contingent liability, William Sr. told them,
that kills off a company's ability to borrow money and
operate with lines of credit, adversely affecting the abili-
ty to finance equipment. That Williams Sr. did, at least,
mention the problem of unfunded liability was conceded
in employee testimony, but was apparently not limited to
that. Finally, Gregory Thomas testified that William Sr.
stated, on this occasion, that he could not make any
promises as to what would happen to the trucks if the
vote went the wrong way.
Tony also spoke to the drivers at the November 11
meeting. He told them that in order to keep competitive,
growing and prospering, Respondent would have to
keep the same kind of contract that it had with Local
332. He said that if the vote went the right way, what-
ever problems the drivers had with the benefit package,
would be straightened out with meetings to begin the
Tuesday after the election. He also said, however, that if
the vote went the wrong way, he could not make any
promises about what the trucks would be doing.
According to another witness, Tony said that Local
247 had cost Respondent money and caused a lot of ag-
gravation over the years. He added that if there was a
"yes" vote, the 10 men lowest in seniority would have to
go out of state.
On November 12, Michael Leoni again visited the
Holly sandpit and engaged Paul Fisher in conversation
while he was waiting to get loaded. He asked Fisher
who had told him to vote for Local 247. Fisher replied
that it was Ray Prince, the secretary-treasurer of Local
332. Michael asked, "why?" Fisher reported that Prince
had said that when two locals fight over membership,
the ultimate winner would be the employer.
On the evening of November 12, after work, as Paul
Fisher was pulling into the Flint terminal, William Sr.
summoned him into his office and told him that he
thought that he had been badly informed. He advised
Fisher that Respondent had a contract with Local 332
and that that contract was going to stand. He stated that
if the rank-and-file wanted to be represented by Local
247, that would be fine as far as he was concerned but
that the Local 332 contract was what he was going to
live with. He said that he would not negotiate on the
road builders' contract and would not sign a road build-
ers' agreement with Joe Aloisio and Local 247.
William Sr. told Fisher that he had had some dealings
with Local 332 in the 1960's and when that Local came
to him when he was buying the trucks and told him that
it wanted a crack at the contract, he agreed. He noted
how years before, he had had a disagreement with Local
332 and he had parked the trucks. He said that he had
parked the trucks then and would do it again if he had
to, adding that he did not want to, but that he was living
with the contract he had with Local 332.
William Sr. then stated that the road builders' contract
was a contract for the road building and excavating busi-
ness; that he had said already that he could not take on
the unlimited liability that is a part of that contract and
that is not a part of the Local 332 contract; and that he
could not afford to sign an unlimited liability contract-
that it would break the Company.
During the days immediately preceding the election,
Michael told employee Cox that if the election resulted
in a "no" vote the employees would stay in Local 332;
that they would be union one way or another. Accord-
ing to Cox, Michael made this statement to him several
times. However, according to employee Gary Green,
Local 332 held a meeting at its union hall in Flint among
Respondent's drivers at which Malpus told them that the
agreement between Local 332 and Respondent was void
because it had never been ratified by the membership:
Between what was being said by members of manage-
ment and what had been said by Malpus, Respondent's
employees were confused as to the status of Local 332.
There were rumors that Local 332 did not want ' any-
thing to do with them. This confusion came to the atten-
tion of Michael who, just before the election, while at
the Holly sandpit, invited Gary Green to call Local' 332
on his, Michael's, car phone to straighten the matter'out.
Green made the call, talked to Malpus, and asked point
blank whether or not Local 332 wanted to represent Re-
spondent's employees. Malpus told Green that' once the
election was settled, it would represent them if the: em-
ployees wanted it to, but Local 332 would not be on the
C.J.R. TRANSFER
ballot. What Malpus was saying, according to Green's
interpretation, was that Local 3.32 was stepping aside for
the time being, and after the election, they could go from
there.
On November 13, the election was held. Some of Re-
spondent's employees were under the impression that
they were choosing whether they would be represented
by Local 247, with Local 332 not at all involved, while
others thought they were choosing between Local 247
and Local 332. After the election, the Respondent con-
tinued to recognize Local 332 as representative of its em-
ployees and continued to deduct dues through the end of
December at which time Malpus told Respondent to dis-
continue checkoff.
On Tuesday, November 17 at about 6:30-8:00 p.m. a
meeting was held in Jerry Main's office. Between 15 and
20 drivers were present. At this meeting, Michael an-
nounced that he was happy about the outcome of the
election and thanked those present for their support. He
said he was going to get the drivers better insurance and
raise the IRAs. He told them that he was switching to
Blue Cross and that the new coverage would include
hospitalization and a dental' plan. He told them that they
could have any kind of insurance they wanted, then sug-
gested that they choose two or three employees from
their number with whom he could sit down and negoti-
ate. He picked out John Kloka, Rennie Sims, Herb
Blomme, and Gary Green as negotiators and the drivers
agreed to these choices. He suggested, likewise, that the
IRA could also be worked on and increased. Subsequent-
ly, these employees met with management as representa-
tives of the drivers to negotiate on insurance and other
fringe benefits.
The Discharge of David Wandoff
Respondent hired David Wandoff in May 1986, as an
experienced gravel train driver. Shortly after being em-
ployed, he drilled two holes in the dash of his truck and
mounted the CB which is used for communications and
dispatching. When the head mechanic, Ron McHutchen
and Main saw the CB mounted on the dash they voiced
their disapproval. McHutchen told Wandoff to remove
it, drill two holes in the passenger seat and mount the
CB there because it looked junky where it was. Wandoff
did as ordered. He also offered to replace the metal plate
on the dash where he had drilled the holes or to have it
repaired. McHutchen told Wandoff not to worry about it
and nothing more was said at the time.
In August 1987, when Local 247 began its organizing
campaign, Wandoff participated in the campaign and
became one of the' two most active employees. He dis-
tributed five or six union cards and signed one himself.
He also collected all the signed cards and returned them
to Joe Aloisio.
As noted above, the day after Respondent was served
with a copy of the petition, Main told Wandoff that be-
cause of him,' all the trucks were being transferred to
Flint. The following day Tony told several of his drivers
that the move to Flint was occasioned by his having
union troubles and by his desire not to get involved with
Local 247. He complained that there were a few people
in the Company who would try and screw it up for ev-
587
eryone else, then said that Wandoff and one other em-
ployee were responsible for the trucks going to Flint but
that he would get the best of him. He told Wandoff that
he was nuts and should get help from a doctor. He ac-
cused him of spreading malicious rumors and starting
trouble and threatened, "I'm going to own your ass for
the rest of your life."
While Tony, on this occasion, displayed open animosi-
ty toward Wandoff's union activity, William Sr. took a
different tack. In personal meetings with Wandoff in
September, he promised to intercede on his behalf to
obtain benefits in return for his support against Local
247.
On October 26, Wandoff was working at the Route
696 jobsite hauling sand from one location at the con-
struction site and dumping it at another location. In
order to get from one area to the other he had to travel
on a public road for between half a mile and a mile.
After making two or three trips he changed his route,
shortening it by using a bridge located on the construc-
tion site . On his first trip, as he turned onto the bridge,
he accidentally ran over a paving ski which he presumed
to be only a piece of scrap metal . He continued on his
way in order to keep the job moving, dumping his load
at the specified location.
When Wandoff ran over the paving ski, Clarence
Wilson, an employee of the State Highway Department
saw the accident and reported it to Charles Pagels, job
superintendent employed by C.J. Rogers and Wiegand
Trucking, a joint venture. He told Pagels that one of Re-
spondent's trucks had run over a ski belonging to Ajax
Paving., Pagels went over and confirmed the ,damage
done to the ski, then searched out Wandoff who, in the
meantime , had made several more trips.
Pagels approached Wandoff as he was dumping a load
of sand and asked him if he was aware that he had run
over the ski. Wandoff denied any knowledge of it so
both walked over to the ski where Pagels pointed out
the damage. Wandoff said that, he had not seen the ski
and Pagels advised Wandoff that he was going to have
to tell Jerry Main what happened. Wandoff agreed, and
went back to work. Pagels then called Steven Aleo, field
office manager for the joint venture, to have him make
out an accident report.
After receiving Pagels' call, Aleo went immediately to
speak with Wilson at the site of the accident, then a
backhoe operator who had witnessed the accident, some
Ajax employees, then with Wandoff. Wilson told Aleo
that a C.J. Rogers Transfer truck had hit the paving ski
as he came across the bridge, the backhoe operator de-
scribed the various routes taken by Wandoff and the
Ajax employees, who were repairing the ski, showed
Aleo the damage and apparently gave an estimate of the
cost of the damage.
When Aleo came over to speak with Wandoff at the
scene of the accident he introduced himself as a supervi-
sor for C.J. Rogers, Inc., and told Wandoff he would
have to make out an accident report. Wandoff agreed,
volunteered all the information, then made out a written
report and gave it to Aleo. Aleo then left.
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to interviewing the various witnesses to the
accident Aleo also took several pictures of the scene of
the accident which showed not only the damaged paving
ski but also the tire tracks indicating that Wandoff's
truck had actually crossed the bridge and ran over the
ski. These pictures were taken within an hour of Pagels'
call. After completing his investigation Aleo returned to
his trailer, wrote up the accident report based on notes
taken at the scene, then turned it in at the office of C.J.
Rogers, Inc., and Wiegand Trucking Co., a joint venture.
An hour after discussing the accident with Aleo, Wan-
doff was called from another jobsite to haul dirt there.
Wandoff testified that he did not report his accident to
Main that day because it slipped his mind and because
Pagels had said that he was going to report it to Main.
Wandoff thought that the problem had been resolved.
A day or two after the accident and after turning in
his report to C.J. Rogers, Inc., and Wiegard Trucking
Company, Aleo returned to the scene of the accident
and drew up a diagram of the scene with distances meas-
ured or approximated. Aleo did not testify as to why he
had not drawn up a diagram during his October 26 in-
vestigation or what prompted him to return to the scene
of the accident 2 days after turning in his report to C.J.
Rogers, Inc.
On October 28, according to the testimony of Re-
spondent's witnesses, Michael and Main visited the
Route 696 construction site . Aleo asked them if they had
heard about Wandoff's accident. Both said that they had
heard nothing about it. Aleo then described the accident
to them.
On November 3,15 at about 7:30 p.m., Wandoff re-
turned after work to the Melvindale yard. He was told,
at that time, to go in and see Michael and Main in the
office. When he did so, he found Michael, Main and Ron
McHutchen present. Michael asked Wandoff if he had
been in an accident.16 Wandoff replied that he had not.
Main then stated, "There Michael, I told you! He's
Lying!" Wandoff asked what was going on. Main re-
plied, "I asked you if you were in an accident and you
said, `no'." Wandoff, whose mind apparently had been
geared to accidents on the public highways became flus-
tered and said, "Wait a minute, let me think," Main re-
minded him, "Did you run over an Ajax Paving ski?"
Wandoff, remembering, that he had. Main then asked if
Wandoff had made out a C.J. Rogers Transfer, Inc., ac-
cident report to which Wandoff admitted that he had
not. When Main asked why he had not done so, Wandoff
replied that the accident had not been that big an acci-
dent and he had forgotten about it.17 He also said that
15 Main placed the date of this event as October 29 or as Friday. Wan-
doff is credited as to the date.
16 Where the testimony of Wandoff and Main differ with regard to this
incident Wandoff's is credited. Wandofi's description of the event was far
more explicit and detailed whereas Main's was extremely general in
nature Also Main stated that the termination occurred on Friday, Octo-
ber 29 and October 29 fell on a Thursday, Friday being October 30
Also, Respondent must certainly have had records to rely upon as to the
discharge date of Wandoff but failed to offer them. Finally, a letter dated
November 6 signed by Main and addressed to Wandoff indicated that his
discharge had been effective November 3.
17 The bill for the damages, received October 28, was $996.64
he had made out an accident report with the job boss,
Steve Aleo, and had given the report to him within 1-
1/2 hours of the accident. He stated that he thought that
would have been sufficient. Main replied that Wandoff
had failed to make out a C.J. Rogers Transfer, Inc., acci-
dent report and was fired. Wandoff repeated that he just
forgot to tell Main and thought the problem was covered
when Aleo accepted his report at the scene of the acci-
dent. He then went on to defend his workmanship, effi-
ciency, attendance record, promptness, and maintenance
of vehicle record. After Wandoff apparently made little
headway with his argument with Main , he addressed Mi-
chael, who said, simply, that he had to stand behind his
bosses. Wandoff continued to argue. He said that he had
a good track record and if anything, he only deserved a
reprimand. He charged that management was overreact-
ing to the situation.
Ron McHutchen, at some point during the discussion,
charged Wandoff with drilling holes in his dashboard
against McHutchen's wishes. Wandoff reminded McHut-
chen that he had drilled the holes in the dashboard
almost a full year and a half before, in order to mount a
CB there and that McHutchen was the one who told him
to take it off. He also reminded McHutchen that he had,
at the time, offered to repair or pay for the repair of the
dashboard.
Main then asked Wandoff if he had again remounted
the CB on the dashboard and Wandoff admitted that he
had done so for, indeed, he had, a few weeks before. He
then explained that he had remounted it on the dash-
board because where he had had it, it was getting wet
and dirty; the microphone cord was being stretched and
needed to be repaired; and it was more convenient af-
fixed to the dashboard.
Main then brought up two more incidents which he
said concerned him, one, a shoving match which had oc-
curred a year and a half ago and a second incident, not
clearly described in the record.
When Wandoff saw that he was getting nowhere argu-
ing with Main and McHutchen, he asked to speak with
Michael alone. Both went outside into the yard where
they reviewed everything that had been said between
Wandoff and Main. Wandoff told Michael that he
thought that management was overreacting; that the
Company was using this minor accident on the jobsite to
fire him because of the upcoming election. Michael re-
plied that he had to go by what his job bosses told him;
that he could not go against them.
On November 6, Respondent notified Wandoff in writ-
ing that his November 3 discharge would stand. It ad-
vised him that after completing its investigation the
Company had determined that Wandoff had been guilty
of misconduct. Specifically, the letter stated as reasons
for the discharge, Wandoff's failure to report the Octo-
ber 26 accident and his drilling of holes in, and his
mounting the radio on, his dashboard.
On February 1, Malpus wrote a letter to Respondent's
attorney, Gabriel Hall advising him that Local 332 was
handling Wandoff's discharge. Nothing apparently came
of the grievance since Wandoff was not back on the job
C.J.R. TRANSFER
as of the date of the hearing, although Malpus and Hall
had discussed Wandoff s discharge.
Sometime about April 1988, a notice was posted at the
terminal requiring drivers to make out an accident report
immediately after any accident and report it to their su-
pervisors. No such notice had been posted prior to Wan-
doff's discharge.
Conclusions
The Transfer
General Counsel charges that the transfer of the driv-
ers from the Melvindale facility to Flint was in direct re-
sponse to, and retaliation for, the employees' union ac-
tivities on behalf of Local 247 and an attempt to avoid
bargaining with that labor organization. Respondent
argues that the transfer of the trucks was made in order
to facilitate a better use of the trucks at the Holly sandpit
and to avoid a strike which was threatened in August by
Local 247.
On this issue, I find, as alleged in the complaint, that
the transfer of the drivers was motivated by antiunion
considerations. I reach this conclusion based on the
timing of the move, i.e., the day after receiving a copy of
the petition; Main's statement to Wandoff that the move
was Wandoff's fault; Tony's repeated admissions to em-
ployees that the move was occasioned by Respondent's
desire to avoid dealing with Local 247; and the failure of
Respondent to document its defenses. 'Indeed, with
regard to these defenses, the record clearly indicates that
the move resulted in no economic benefit to Respond-
ent" but rather a severe inconvenience to the drivers
and, to a lesser extent, to Respondent. The drivers, for
the most part, worked in the Detroit area; as much after
the move to Flint as before but had to drive much fur-
ther in order to get to work. This caused a great deal of
dissatisfaction among these employees which the Re-
spondent foresaw. The probability that some of these
drivers might quit because of the move and cause dislo-
cation was openly discussed but ignored, if not wel-
comed by Respondent. Thus, it is clear that the move to
Flint was a benefit to no one and was solely the result of
Respondent's desire to avoid having to bargain with
Local 247. Similarly, Respondent offered no evidence to
support its claim that the move was prompted by a
threat from Local 247 that it would strike Respondent if
it remained in Melvindale.19 In short, I ' conclude that
Respondent transferred its drivers from Melvindale to
Flint in retaliation for its employees' union activities and
to avoid having to bargain with Local 247 thus violating
Section 8(a)(1) and (3) of the Act. St. Regis Paper Co.,
18 Respondent's failure to offer documentary evidence to support its
defense of economic motivation warrants the adverse inference , which I
draw, that if documentation were offered, it would not support Respond-
ent's position Asbestos Workers Local 53, 262 NLRB 934 (1982), St Regis
Paper Co, 247 NLRB 745 (1980)
is The fact that Local 247 engaged in area standards picketing five
months before, is not evidence that it intended to picket Respondent in
August, particularly in the midst of an organizing campaign. Moreover,
in the spring of 1987, Local 247 warned Respondent that it was going to
picket before it did so No such warning was received by Respondent in
August.
589
239 NLRB 688 (1978); 255 NLRB 529 (1981); modified
674 F.2d 104 (1st Cir. 1982); 285 NLRB 293 (1987).
The Discharge of David Wandoff
The record clearly reflects that Wandoff was one of
the most visible union activists among Respondent's em-
ployees; that Respondent was well aware of his activi-
ties; bore him a great deal of animus because of them;
and openly threatened him with retaliation because of
these activities. The record supports the complaint's
8(a)(3) allegation that Respondent terminated Wandoff
because of his union activities. A prima facie case exists.
Respondent argues that Wandoff's union activity had
nothing to do with his discharge. Although the discharge
letter sent to Wandoff on November 6 states that Re-
spondent fired Wandoff because of his accident on Octo-
ber 26, his failure to report that accident and because he
drilled holes in the dashboard of his truck and mounted
his CB there, contrary to the orders of his supervisors,
Respondent's attorney, Robert J. Solner, during the hear-
ing, specifically stated:
We're not complaining about the fact that [Wan-
doff] had an accident. It's [the] fact that he didn't
report it, he was fired.
Thus, Respondent's attorney's statement of his client's
position clarifies that position and Respondent is bound
by it.2O
The record reflects that Respondent, in its November
6 discharge letter, charged that Wandoff's "reckless op-
eration of truck number 002 resulted in serious damage
to a fellow contractor's equipment," but took the posi-
tion at the hearing that it was not the accident nor its
seriousness which was the basis for the discharge. It ap-
pears quite probable that Respondent took the position it
did at the hearing because it was aware that several of its
drivers had had far more serious accidents than Wan-
doff's and had not been fired, disciplined nor reprimand-
ed for them.
Since Wandoff's accident was not a serious one, Re-
spondent determined to rely solely on the fact that he
failed to report it as the reason for the discharge. But
there is no evidence that Wandoff was deliberately
trying to hide the fact of the accident from Main after he
was advised by Pagels that he had damaged the ski.
Indeed, Pagels told Wandoff, at the time of the accident,
that he, himself, was going to tell Main about it. Then,
shortly afterwards, when Aleo introduced himself as the
job boss and as an employee of C.J. Rogers, Inc., and
had Wandoff make out a report, it was patently clear
that Main and the Leonis were bound to be advised of
the accident and there could be no way of hiding the
fact. Clearly, Wandoff's failure to also mention it to
Main was merely an oversight and not a deliberate at-
tempt to avoid responsibility for the accident. Moreover,
Wandoff knew that Aleo worked for C.J. Rogers, Inc.
and was -aware that William Sr. and Tony were involved
in the operation and management of both C.J. Rogers,
20 Massilon Community Hospital, 282 NLRB 675 (1987); and Florida
Steel Corp, 235 NLRB 1010 (1987).
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Inc., and C.J. Rogers Transfer. It was reasonable, there-
fore, to assume that reporting the accident to one was
the equivalent of reporting it to the other. He thus felt
that when he made out the accident report and gave it to
Aleo, he had completed all that was necessary and that
also reporting it to Main was a mere technicality.
But for the fact that Wandoff was a strong union ac-
tivist, toward whom Respondent's officers bore a high
degree of demonstrated animus, his technical failure to
notify Main in addition to Aleo would have been over-
looked.
Gregory Thomas, a driver employed by Respondent
was called as a witness for the General Counsel. He re-
lated an incident similar but not identical to the circum-
stances surrounding the Wandoff accident. Thomas testi-
fied that while he was backing up his truck at a site
where one of the various Rogers companies was en-
gaged, he accidentally ran over a sharp object which
blew out and totally destroyed a tire valued at approxi-
mately $300. A Rogers' foreman standing nearby told
Thomas to just keep on working and if there were any
questions to "just tell them to give me a call." Thomas
repaired the tire and worked the entire day. He did not
make out a report nor advise Main what had occurred.
He did, however, account for the lost time on his time-
card. No action was taken against Thomas.
The timing of the various incidents surrounding Wan-
doff's accident and firing suggests that Main was aware
of the accident the very day it happened which would
make Wandoffs failure to personally report it directly to
him even more of a technical violation of the rules than
the facts described above. Thus, Wandoff made out his
accident report and gave it to Aleo within an hour and a
half of the accident. Aleo, the same day, October 26,
wrote up his report and delivered it to the joint venture
office of C.J. Rogers, Inc. He went back, a day or two
later, to the scene of the accident to draw up a diagram.
He did so, I believe, not of his own volition, but because
he was told to do so. If it had been his own idea, or if it
were part of his standard practice, he would have drawn
the diagram on October 26 when he was already at the
scene taking pictures and interviewing witnesses. Who,
then, ordered Aleo to return to the scene of the accident,
to obtain additional evidence by drawing the diagram?
Most likely, it would have been the person to whom he
delivered the diagram on November 2-Jerry Main. The
diagram21 bears the notation on the back:
Report
Date given to J. Main 11-2-87
Make Personal notes on discussions
Although Respondent in its brief22 states that Main
learned about the accident on November 3, eight days
later, I find it likely that he learned of it the same day it
happened through Wandoff's report to Aleo and Aleo's
report to C.J. Rogers, Inc., on October 26. Thus, Re-
spondent used the technicality of Wandoff's failure to
report the accident directly to Main as a pretext for ter-
minating him for his union activities and to prevent him
21 Emp. Exh. 12
22 P. 3.
from casting his-ballot for Local 247 in the forthcoming
election.
As for the remounting of the CB, I credit Wandoff's
testimony to the effect that the two holes had been ini-
tially drilled a year and a half before and the CB mount-
ed then; that he took it down when told to do so; and
offered to repair or pay for the panel, which offer was
refused. He caused no damage in October but merely re-
mounted the CB back on the dash contrary to orders re-
ceived a year and a half before. The problem could ap-
parently be remedied once again in minutes by McHut-
chen or Main telling Wandoff to put the CB back on the
seat where it had been for the past 18 months. I am con-
vinced that, but for Wandoff's union activity, he never
would have been fired for so trivial a matter. Respond-
ent used the incident as a makeweight argument for the
discharge just as it did the shoving incident, also a year
and a half old, and a matter of history.
The General Counsel has made a strong prima facie
showing that Wandoff's union activities were a motivat-
ing factor in Respondent's decision to discharge him. For
reasons set forth supra, I find that Respondent has failed
to show that Wandoff would have been discharged even
in the absence of his union activity. Accordingly, I con-
clude that Respondent discharged Wandoff because of
his union activities, in violation of Section 8(a)(1) and (3)
of the Act.23
Independent 8(a)(1) Violations
As more fully described above, I find that Respondent
violated Section 8(a)(1) of the Act by the following acts
and conduct:
1. On August 21, Main told Wandoff that he would no
longer be working out of Melvindale; that because of
him, [his union activity], all the trucks were being trans-
ferred to Flint.
2. On August 22, Tony Leoni informed various groups
of employees that they were being transferred to Flint so
that Respondent could avoid dealing with Local 247.
3. On August 22, Tony Leoni informed Wandoff and
other employees that Wandoff and one other employee
was responsible for the trucks going to Flint and threat-
ened Wandoff by stating that he was going to "own his
ass for the rest of his life."
4. On August 22, Tony Leoni interrogated one group
of employees as to why they wanted Local 247 to repre-
sent them. The violation is found based on Respondent's
demonstrated animosity toward Local 247.24
5. During the months of September and October, Main
advised Kyle Cox that the trucks would remain in Flint
until the union problem was settled.
6. In early September, William Leoni, Sr. promised
Wandoff, in the context of a discussion concerning his
preference for Local 247 over Local 332, that he would
discuss with Michael, improving Wandoff's benefits.
7. Twice, in late and mid-October, Main interrogated
Richard Near as to which way he was going to vote in
23 Wnght Line, 251 NLRB 1083 (1980), enfd. as modified 662 F 2d 899
(1st Cir. 1981).
24 Rossmore House, 269 NLRB 1176 (1984).
C.J.R. TRANSFER
the election. The violation is again found based on Re-
spondent's demonstrated animosity toward Local 247.25
8. In mid-October, William Leoni, Sr. interrogated
Near as to what he thought about the Unions and threat-
ened him by stating that it was up to the drivers which
way the vote would go. and whether or not they would
have money in their pockets.
9. On November 7, Michael Leoni told the drivers
that he had to have a "no" vote in order for the employ-
ees to keep what they had but that if the election came
out the other way, that things were going to change;
that he was going to have to do something one way or
the other.
10. At the November 7 meeting, Michael Leoni prom-
ised that if there was a "no" vote, then after the election,
he and the employees would sit down and straighten out
all the problems the employees had with the contract
then in effect.
11. At the November 7 meeting, Michael Leoni asked
the drivers what their complaints, problems or gripes
were and what he could do to make the contract better
for the employees.
12. At the November 7 meeting, Michael Leoni prom-
ised that if the vote went the right way the IRAs would
be increased to the maximum and that he would look
into the insurance.
13. At the November 7 meel.ing, Michael Leoni stated
several times that neither he nor his father would negoti-
ate with Local 247 on the road builders' agreement; that
there would be no signing of that agreement; that Local
247 does not want to see him in business; and that his
father would in no way sign a contract with Local 247.
14. At the November 7 meeting, Michael Leoni threat-
ened that if there was a "yes" vote, that Respondent
would send 10 of its trucks out of state or would sell
those trucks and that the drivers with the least seniority
would be without jobs.
15. Four or five days before the election, Michael
Leoni promised Jack Linck that he would allow Linck
to remain based in Flint but needed a "no" vote.
16. During the week before the election, Michael
Leoni informed Paul Fisher and, James Hiveley that Re-
spondent could not sign an agreement with Local 247
and threatened that the only way he could guarantee
that things would stay the same was a "no" vote.
17. Within a week of the election, Michael Leom
threatened Charles Pitt, Jr. on three or four occasions,
that he had to have a "no" vote, and that if he did not
get one, the 7 to 10 drivers with the least seniority
would lose their jobs, and the trucks would work out of
Flint permanently.
18. At the group meeting on November 11, Michael
Leoni told the assembled employees that if the vote went
the right way, directly after the vote, they would all get
together and talk about their problems, including getting
better insurance, and would resolve these problems as
fast as possible. He then promised these employees that
the Company would make good on whatever it promised
them with respect to the benefit package and retirement.
25 Ibid.
591
19. At the group meeting on November 11, Michael
Leoni demonstrated to the employees the futility of seek-
ing representation by stating that there was no way his
father would sign a road builders' agreement with Joe
Aloisio of Local 247, and that there was no way the
Company could deal with Local 247.
20. At the group meeting on November 11, Michael
Leoni threatened the assembled employees that if the
vote went the wrong way, 10 of the trucks driven by
drivers with the least seniority were going to go out of
state.
21. At the group meeting on November 11, William
Leoni, Sr. demonstrated to the employees the futility of
seeking representation by stating that the Company was
doing well and that in order to keep doing well, he
would have to keep it set up the way it was; that Local
247 was out to run him out of business; that there was a
feud between Local 247 and himself; and that he could
not live with them and wanted no part of Local 247 or
Joe Aloisio.
22. At the group meeting on November 11, Tony
Leoni promised the drivers that if the vote went the
right way, whatever problems the drivers had with the
benefit package would be straightened out with meetings
to begin the Tuesday after election and threatened that if
the vote went the wrong way, he could not make any
promises as to what the trucks would be doing; that the
10 men lowest in seniority would, have to go out of state.
23. On November 12, Michael Leoni interrogated
Fisher as to who had told him to vote for Local 247.
24. On November 12, William Leoni, Sr. demonstrated
to Fisher the futility of seeking representation by stating,
in connection with Local 247, that he had parked the
trucks before, and would do so again if he had to.
Section 8(a)(2)
Continued Recognition of Local 332
Respondent, on May 19, 1986, entered into a collec-
tive-bargaining agreement with Local 332 before it had
hired any employees. By Decision and Direction of Elec-
tion issued by the Regional Director for Region 7 of the
National Labor Relations Board on October 14, 1987, the
collective-bargaining agreement was found not to be a
bar to the election.
On October 23, 1987, Local 332 filed a disclaimer of
interest and on October 30, the Region advised Respond-
ent that it had done so, stating:
... Local 332, Teamsters disclaimed interest in
representing the employees in the unit set forth in
the Decision and Direction of Election and also ex-
pressed its wish not to appear on the election ballot.
... The employees will be asked to choose
whether they wish to be represented for purposes of
collective-bargaining by Local 247.
Despite the disclaimer, Respondent continued to recog-
nize Local 332 as representative of its employees. It con-
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tinned to deduct dues26 for Local 332, falsely advised
certain employees that if Local 247 lost the election,
they would still be represented by Local 332 and even
attempted to process Wandoff's discharge through the
Local 332 grievance procedure to a limited extent.
As observed in Professional Ambulance Service,27 by
making continuous efforts to arrange a shotgun wedding
between its employees and a union it feels it can deal
with, Respondent violates Section 8(a)(2) of the Act. I
find it has done so here.
Objectionable Conduct -
Those unfair labor practices found herein to have oc-
curred during the critical period are likewise found to be
objectionable conduct.28
Majority Status
I find that Local 247 obtained majority status in the
appropriate bargaining unit as of August 10. The objec-
tions raised by Respondent to certain authorization cards
are without foundation.29
The Bargaining Order
General Counsel urges issuance of a bargaining order
under Gissel.30 I find the same to be warranted based on
the following considerations:
1. The transfer of Respondent's employees from the
Melvindale terminal to the Flint terminal in order to un-
dermine Local 247's organizing efforts at great inconven-
ience and cost to the employees together with the threat
that if Local 247 won the forthcoming election the trans-
fer would be made permanent.
2. The unlawful discharge of Wandoff, a leading union
adherent, in violation of Section 8(a)(3), during the union
campaign , just prior to the election.
3. The numerous independent violations of Section
8(a)(1) including the coercive interrogation of employees,
solicitation of grievances and promises to remedy them,
the demonstration to the employees of the futility of
seeking representation by stating that Respondent would
not sign a Local 247 agreement or negotiate with its rep-
resentative and the various threats of discharge and other
retaliation toward employees because of their union ac-
tivities.
4. The fact that the violations of Section 8(a)(1) were
almost all committed by members of the family who
owned the business and were its officers, and who were
in a position to carry through on their threats and prom-
ises.31
26 Respondent did not cease deducting dues for Local 332 until specifi-
cally requested to do so
27 232 NLRB 1141 (1977).
28 White Plains Lincoln Mercury, 288 NLRB 1133 (1988).
29 World Wide Press, 242 NLRB 346 (1979), J.P. Stevens Co., 247
NLRB 420 (1980); Atlas Microfilming, 267 NLRB 682 (1983), enfd 753
F 2d 313 (3d Cir 1985).
30 NLRB v. Gissel Packing Co., 395 U S 575 (1969)
31 J. Coty Messenger Service, 272 NLRB 268 (1984); Marion Center
Supply, 277 NLRB 262 (1985).
5. The fact that the Respondent's violative activity ad-
versely affected all or virtually all of its employees.32
I find the highly coercive unfair labor practices com-
mitted by Respondent to have been extensive and perva-
sive, and likely to have had a profound impact on all em-
ployees. In light of the violations found, I must conclude
that the possibility of erasing the effects of the Respond-
ent's unfair labor practices and of conducting a fair rerun
election by the use of traditional remedies is slight. Simi-
larly, I conclude that the employees' representation de-
sires, once expressed through authorization cards would,
on balance, be protected better by the issuance of a bar-
gaining order than by traditional remedies . Accordingly,
I shall recommend that an Order issue requiring the Re-
spondent to bargain with Local 247 as the duly designat-
ed representative of its employees in the unit found ap-
propriate for purposes of collective bargaining effective
August 22, 1986, the date Respondent commenced its un-
lawful course of conduct.33
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 247 and Local 332 are labor organizations
within the meaning of Section 2(5) of the Act.
3. The Respondent v'olated Section 8(a)(1) of the Act
by:
(a) Informing an employee that he would no longer be
working at Melvindale; that because of him [his union
activity], all the trucks were being transferred to Flint.
(b) Informing employees that they were being trans-
ferred to Flint so that Respondent could avoid dealing
with Local 247.
(c) Informing employees that certain identified union
activists were responsible for the trucks being transferred
to Flint.
(d) Threatening an employee with unspecified future
retaliation because of his union activities.
(e) Coercively interrogating employees as to what they
thought about the unions, why they wanted Local 247 to
represent them, who had told them to vote for Local 247
and which way they would vote in the forthcoming rep-
resentation election.
(f) Informing an employee that the trucks would
remain in Flint until the union problem was settled.
(g) Promising improved benefits to employees in order
to dissuade them from supporting or voting for Local
247 in the forthcoming representation election.
(h) Threatening an employee by stating that it was up
to the drivers which way the vote would go and wheth-
er or not they would have money in their pockets.
(i) Threatening employees that Respondent had to
have a "no" vote in order for the employees to keep
what they had but that if the election came out the
wrong way, that things were going to change and that
Respondent was going to have to do something one way
or the other.
32 Ibid
33 Trading Port, Inc., 219 NLRB 298 (1975)
C.J.R. TRANSFER
(j) Soliciting grievances from employees and asking
them what Respondent could do to make the contract
better for them.
(k) Demonstrating to employees the futility of seeking
union representation by informing them that Respondent
would not negotiate with Local 247 on the road builders'
agreement; that there would be no signing of that agree-
ment; that there was a feud between Respondent and
Local 247; that Local 247 was out to run Respondent
out of business; that Respondent could not live with
Local 247 and wanted no part of it or its representative;
that Respondent would, in no way, sign a contract with
Local 247; and that there was no way Respondent could
deal with Local 247.
(1) Threatening employees that if there was a "yes"
vote, Respondent would send 7 to 10 of its trucks out of
state or would sell those trucks, and the drivers with the
least seniority would be without jobs.
(m) Promising an employee that he would be allowed
to remain based in Flint but that Respondent needed a
"no" vote.
(n) Demonstrating the futility of seeking representation
by stating, in connection with Local 247, that it had
parked the trucks before, and would do so again if it had
to.
4. Respondent violated Section 8(a)(2) and (1) of the
Act by continuing to recognize and bargain with Local
332 as the representative of its employees and continuing
in full force and effect the collective bargaining agree-
ment it had previously executed with that labor organi-
zation despite the fact that Local 332 had since dis-
claimed any interest in representing its employees.
5. Respondent violated Section 8(a)(3) and (1) of the
Act by transferring all of its drivers to its Flint terminal
in retaliation for their union activities and to avoid
having to bargain with Local 247.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging David Wandoff because he had en-
gaged in union activities.
7. All full-time and regular part-time sand and gravel
truckdrivers employed by the Employer out of its facili-
ties in Flint and Melvindale, Michigan, including those
hauling materials to and from construction sites, those
who drive straight jobs, semis, double bottom trucks, and
those to-boy drivers employed in an ancillary capacity to
construction operations; but excluding employees en-
gaged in steel hauling operations, office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act, and all other employees constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
8. On August 10, 1987, a majority of the employees in
the unit designated Local 247 as their representative for
purposes of collective bargaining.
9. Since on or about August 22, when Respondent
commenced engaging in its extensive and pervasive pat-
tern of unfair labor practices, Local 247 has been the ex-
clusive bargaining representative of Respondent's em-
ployees in the unit described above in paragraph 7 for
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
593
10. Since on or about August 22, Respondent has re-
fused to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of its em-
ployees in the above-described unit in violation of Sec-
tion 8(a)(5) and (1) of the Act.
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
12. The Respondent did not engage in any unfair labor
practices not specifically found herein.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
More specifically, I shall recommend that the Board
order Respondent to offer David Wandoff immediate
and full reinstatement to his former position or, if that
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or any other
rights or privileges previously enjoyed. I shall further
recommend that Respondent be ordered to make Wan-
doff whole for any loss of earnings and other benefits he
may have suffered as a result of the discrimination
against him, to be computed in accordance with F W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987). I shall also recommend that Respondent be
ordered to remove from its files any reference to the un-
lawful discharge and to notify Wandoff in writing that
this has been done and that the unlawful discharge will
not be used against him in any way.
With regard to the unlawful transfer, I shall recom-
mend that the Board order the Respondent to make
whole all employees transferred to Flint for the extra
mileage driven and extra time needed to commute to and
from the Flint terminal.
As to the 8(a)(2) violation, an order to cease recogni-
tion of Local 332 should issue with a refund of all dues
collected from employees since November 1, 1987.
Finally, I shall recommend that the Board order Re-
spondent to recognize Local 247 as the exclusive collec-
tive-bargaining representative of its employees in the ap-
propriate unit and, on request, to bargain in good faith
with Local 247. Of course, the usual order to post no-
tices to employees will be recommended.
On the foregoing findings of fact, conclusions of law,
and on the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended34
ORDER
Respondent, C.J.R. Transfer, Inc.,; C.J. Rogers Trans-
fer, Inc., its officers, agents, successors, and assigns, shall
sa If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur.
poses
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ^
1. Cease and desist from
(a) Informing employees that because of their union
activity, all the trucks will be transferred to Flint.
(b) Informing employees that they are being trans-
ferred to Flint so that Respondent can avoid dealing
with Local 247.
(c) Informing employees that certain union activists
are responsible for the trucks being transferred to Flint.
(d) Threatening employees with retaliation because of
their union activities.
(e) Coercively interrogating employees as to what they
think about the Unions; why they want Local 247 to rep-
resent them; who told them to vote for Local 247; or
which way they will vote in representation elections.
(f) Informing employees that the trucks will remain in
Flint until the union problem is settled.
(g) Promising improved benefits to employees in order
to dissuade them from supporting or voting for Local
247 in any representation election.
(h) Threatening employees by telling them that it is up
to them which way the vote will go and whether they
will have money in their pockets.
(i) Threatening employees by telling them that the Re-
spondent had to have a "no" vote in order for the em-
ployees to keep what they had but that if the election
went the wrong way, that things were going to change
and that Respondent was going to have to do something
one way or the other.
(j) Soliciting grievances from employees and asking
them what Respondent can do to make the contract
better for them.
(k) Attempting to demonstrate to employees the futili-
ty of seeking union representation by informing them
that Respondent would not negotiate with Local 247 on
the road builders', agreement ; that there would be no
signing of that agreement; that there was a feud between
Respondent and Local 247; that Local 247 was out to
run Respondent out of business; that Respondent could
not live with Local 247 and wanted no part of it o- its
representative; that Respondent would, in no way, sign a
contract with Local 247; and that there was no way Re-
spondent can deal with Local 247.
(1) Threatening employees that if there is a "yes" vote,
Respondent will send 7 to 10 of its trucks out of state or
will sell these trucks, and the drivers with the least se-
niority will be without jobs.
(m) Promising employees that Respondent will allow
them to remain based in Flint if they will vote against
Local 247.
(n) Attempting to demonstrate the futility of seeking
representation by stating, in connection with Local 247,
that Respondent had parked its trucks before, and would
do so again if it had to.
(o) Continuing to recognize and bargain with Local
332 as the representative of its employees, and continu-
ing in full force and effect, the collective-bargaining
agreement it had previously executed with that labor or-
ganization.
(p) Transferring employees to its Flint terminal in re-
taliation for their union activities and to avoid having to
bargain with Local 247.
(q) Discharging employees because they engaged in
union activities.
(r) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to David Wandoff immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the decision.
(b) Make whole all employees transferred to Flint for
the extra mileage driven and extra time needed to com-
mute to and from the Flint terminal.
(c) Refund all dues collected from employees on
behalf of Local 332 since November 1, 1987.
(d) On request, recognize and bargain with Local 247,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, as
the exclusive representative of all the employees in the
bargaining unit described below and, if an understanding
is reached, embody such understanding in a signed agree-
ment:
All full-time and regular part-time sand and gravel
truck drivers employed by the Employer out of its
facilities in Flint and Melvindale, Michigan, includ-
ing those hauling materials to and from construction
sites, those who drive straight jobs, semis, double
bottom trucks, and those to-boy drivers employed
in an ancillary capacity to construction operations;
but excluding employees engaged in steel hauling
operations, office clerical employees, professional
employees, guards and supervisors as defined in the
Act, and all other employees.
(e) Expunge from its files any references to the dis-
charge of David Wandoff on November 3, 1987, and
notify him in writing that this has been done and that
evidence of his unlawful discharge will not be used as a
basis for future personnel actions against him.
(t) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary and relevant to analyze the amount of
backpay due and the rights of employment under the
terms of this recommended Order.
(g) Post at its facilities at Melvindale and Flint, Michi-
gan, copies of the attached notice marked "Appendix.,, 3-5
Copies of said notice, on forms provided by the Regional
Director for Regional 7, after being signed by Respond-
ent's representative, shall be posted by it immediately
39 If 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
CJ.R. TRANSFER 595
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
(h) Notify the Regional Director within 20 days from
the date of this Order what s leps Respondent has taken
to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT inform our employees that because of
their union activities, all our trucks will be transferred to
Flint.
WE WILL NOT inform our employees that they are
being transferred to Flint so that we can avoid dealing
with Local 247.
WE WILL NOT inform employees that certain union ac-
tivists are responsible for the trucks being transferred to
Flint.
WE WILL NOT threaten employees with retaliation be-
cause of their union activities.
WE WILL NOT coercively interrogate employees as to
what they think about unions; 'why they want Local 247
to represent them; who told them to vote for Local 247;
or which way they will vote in representation elections.
WE WILL NOT inform our employees that the trucks
will remain in Flint until the union problem is settled.
WE WILL NOT promise improved benefits to employees
in order to dissuade them from supporting or voting for
Local 247 in any representation election.
WE WILL NOT threaten our employees by telling them
that it is up to them which way the vote will go and
whether or not they will have money in their pockets.
WE WILL NOT threaten our employees by telling them
that we have to have a "no" vote in order for them to
keep what they have or that if the representation elec-
tion goes the wrong way, things are going to change and
that we are going to have to do something one way or
another.
WE WILL NOT solicit grievances from our employees
and ask them what we can do to make the contract
better for them.
WE WILL NOT inform our employees that we will not
negotiate with Local 247 on the road builders' agree-
ment; that there will be no signing of the agreement; that
there is a feud between Local 247 and us; that Local 247
is out to run us out of business; that we cannot live with
Local 247; that we want no part of Local 247 or its rep-
resentatives; that we will in no way sign a contract with
Local 247; or that there is no way we can deal with
Local 247.
WE WILL NOT threaten our employees that if there is a
"yes" vote, we will send 7 to 10 of our trucks out of
state or that we will sell these trucks and the drivers
with least seniority will be without jobs.
WE WILL NOT promise our employees that we will
allow them to remain based in Flint if they will vote
against Local 247.
WE WILL NOT attempt to demonstrate the futility of
seeking representation by stating, in connection with
Local 247, that we have parked our trucks before, and
will do so again.
WE WILL NOT continue to recognize and bargain with
Local 332 as the representative of our employees, or
continue in full force and effect, the collective-bargaining
agreement we previously executed with that labor orga-
nization.
WE WILL NOT transfer employees to our Flint terminal
in retaliation for their union activity or to avoid having
to bargain with Local 247.
WE WILL NOT discharge employees because they en-
gaged in union activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer to David Wandoff immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges he
enjoyed and WE WILL make him whole for any loss of
earnings and other benefits suffered as a result of the dis-
crimination against him.
WE WILL make whole all employees transferred to
Flint for the extra mileage driven and extra time needed
to commute to and from the Flint terminal.
WE WILL refund all dues collected from employees on
behalf of Local 332 since November 1, 1987.
WE WILL, on request recognize and bargain with
Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO as the exclusive representative of all the em-
ployees in the bargaining unit described below and, if an
understanding is reached, embody such understanding in
a signed agreement:
All full-time and regular part-time sand and gravel
truck drivers employed by the Employer out of its
facilities in Flint and Melvindale, Michigan, includ-
ing those hauling materials to and from construction
sites, those who drive straight jobs, semis, double
bottom trucks, and those to-boy drivers employed
in an ancillary capacity to construction operations;
but excluding employees engaged in steel hauling
operations, office clerical employees, professional
employees, guards and supervisors as defined in the
Act, and all other employees.
WE WILL expunge from our files any references to the
discharge of David Wandoff on November 3, 1987, and
notify him in writing that this has been done and that
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence of his unlawful discharge will not be used as a
basis for future personnel actions against him.
C.J.R. TRANSFER, INC., C.J. ROGERS
TRANSFER, INC.