Coil-ACC, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1982

262 N.L.R.B. 76 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coil-ACC, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 20. Cases 8-
CA-13062 and 8-CA-13289
June 9, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On November 10, 1981, Administrative Law
Judge James M. Fitzpatrick issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, a brief
in answer to the Charging Party's exceptions, and a
motion to reopen the record. The Charging Party
filed exceptions and a supporting brief, a brief in
answer to Respondent's exceptions, and an opposi-
tion to Respondent's motion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, 3 as
modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
I The Administrative Law Judge did not make clear that, when Re-
spondent's owner, Joseph Oliver, discharged Orlie Stahl as a driver, he
offered Stahl employment as a laborer at lower pay. Both Oliver and
Stahl testified without contradiction that the offer was made and refused.
In addition Stahl testified that he had the laborer's job "For a week while
I looked for another job."
Member Jenkins regards Respondent's reasons for discharging Corneli-
son as having been discredited as pretextual, thus leaving no lawful
reason for the discharge and making Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980). inapplicable.
I Respondent moved to reopen the record to present evidence of sub-
stantial changes in its employee complement which would render the bar-
gaining order inappropriate. Respondent's motion is denied as none of the
issues it raises are relevant to determining whether a bargaining order
should now issue. Tartan Marine Company, 247 NLRB 646, 648, fn. 8
(1980).
3 In accordance with his partial dissent in Olympic Medical Corporation,
250 NLRB 146 (1980), Member Jeikins would award interest on the
backpay due based on the formula set forth therein.
4 Based on our own careful analysis of this case, we have determined
that Respondent, by the number and extent of its unfair labor practices,
and their pervasiveness in this unit of only four employees, has engaged
in such egregious and widespread misconduct as to demonstrate a general
disregard for its employees' fundamental statutory rights. We therefore
find appropriate modification of the recommended Order to include
broad injunctive language against the further commission of any unfair
labor practices by Respondent. See Ilickmort Foods. Inc., 242 NLRB 1357
(1979).
We shall also modify the Administrative Law Judge's recommended
Order by requiring Respondent to expunge from Rick Cornelison's per-
sonnel record, or other files, any reference to his discharge.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Coil-ACC, Inc., Toledo, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in said recommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the
Act."
2. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge any reference to the discharge of
Rick Cornelison from his personnel record or other
files."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coercively interrogate em-
ployees about their union activities.
WE WILL NOT threaten to close the shop if
the Union represents our employees.
WE WILL NOT discharge or otherwise dis-
criminate against employees for engaging in
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL offer Rick Cornelison immediate
and full reinstatement to his former position
or, if that position no longer exists, to a sub-
262 NLRB No. 12
76
COIL-ACC, INC.
stantially equivalent position without prejudice
to his seniority or other rights and privileges
previously enjoyed, and WE WILL make him
whole for any loss of earnings or benefits suf-
fered by reason of the discrimination against
him, with interest.
WE WILL expunge any reference to the dis-
charge of Rick Cornelison from his personnel
record or other files.
WE WILL, upon request, bargain collectively
in good faith with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union 20, as the
exclusive representative of our employees in
the appropriate unit described below and
embody any understanding reached in a signed
agreement. The appropriate bargaining unit is:
All full-time and regular part-time machine
operators and truckdrivers, but excluding all
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the National Labor Relations Act, employed
at our Toledo, Ohio shop.
COIL-ACC, INC.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: In
this case the company president refused to recognize the
Union which all four of his employees had joined. Short-
ly thereafter he fired one employee and 2 months later
fired another. The issues are (a) whether he unlawfully
questioned employees about going to the Union and told
them he would close the shop to avoid the Union, (b)
whether he unlawfully refused to recognize and bargain
with the Union, (c) whether the two discharges were un-
lawful discrimination, and (d) whether a fair election can
now be held. As set out below, I find the questions to
employees, the threat to close and the refusal to recog-
nize and bargain were all unlawful. I also find that the
first discharge was unlawful discrimination but that the
second was not. Finally, I find that the circumstances are
such that a fair election cannot be held.
The case arises out of two unfair labor practice
charges filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union 20 (the Union), against Coil-ACC, Inc. (the
Company or Respondent), claiming Respondent had
committed unfair labor practices prohibited by the Na-
tional Labor Relations Act, as amended (the Act). The
first charges (Case 8-CA-13062) were filed August 3,
1979,' and September 6 a complaint based on these
charges issued alleging that Respondent had engaged in
unfair labor practices prohibited by Section 8(a)(1), (3),
and (5) of the Act. On September 19 Respondent an-
' All dates herein are in 1979 unless otherwise indicated.
swered, denying the unfair labor practices. On October
23 the Union filed additional charges (Case 8-CA-13289)
which it amended on November 29. On December 11 an
amended consolidated complaint based on all these
charges issued, and was further amended at the hearing,
alleging that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of
the Act. Respondent answered this complaint on Decem-
ber 18, admitting jurisdictional allegations, the identity of
the parties and of Respondent's principal officer, and the
appropriateness of the bargaining unit alleged, but deny-
ing all alleged unfair labor practices. The issues remain-
ing are whether Respondent violated Section 8(a)(1) of
the Act by interrogating employees about union activi-
ties and by threatening that the plant would close. The
discrimination issues are whether Respondent terminated
Rick Cornelison on June 22 and thereafter refused to re-
instate him because he engaged in union activities in vio-
lation of Section 8(a)(3) of the Act and whether on
August 23 Respondent similarly violated Section 8(a)(3)
by terminating Orlie Stahl and thereafter refusing to rein-
state him. With respect to union representation, the com-
plaint alleges that since June 19 the Union has been the
exclusive representative of a majority of Respondent's
employees in an appropriate bargaining unit and that
since June 20 it has requested, and Respondent has re-
fused, to bargain with it thereby violating Section 8(a)(5)
of the Act. Respondent denies all these allegations. The
complaint also alleges, and Respondent denies, that the
unfair labor practices of Respondent dissipated the
Union's majority status and created an atmosphere in
which a free and fair election under Board auspices
cannot now be held. These issues were heard before me
at Toledo, Ohio, on March 31 and April 1, 1980.
Based on the entire record,2 including my observation
of the witnesses and consideration of the briefs of the
parties, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER AND THE UNION
Respondent, an Ohio corporation, has since June 1978
been engaged at Toledo, Ohio, in the manufacture and
wholesale distribution of rain gutters and downspouts. In
this business it annually ships to points outside Ohio
goods valued over $50,000, and I find it is an employer
engaged in commerce within the meaning of the Act.
Joseph Oliver is Respondent's owner, president, and
chief operating officer, and is an agent acting on its
behalf. The only other management official is Respond-
ent's accountant. During the period pertinent to this case
Respondent employed four employees, including one
tractor-trailer driver and three shop workers, one of
whom also operated a truck.
It is undisputed that the Union is a labor organization
within the meaning of the Act.
2 I include as part of the record a copy of a letter dated May 15, 1980.
from Respondent's attorney to the counsel for the General Counsel re-
specting reinstatement and backpay for Rick Cornelison. I have marked it
ALJ Exh. I.
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE AI..EGED UNFAIR LABOR PRACTICE
A. Union Organizing
About June 12 Respondent discharged part-time em-
ployee Charles Collins. This prompted the other employ-
ees to discuss among themselves the benefits of organiz-
ing a union for their mutual aid and protection. About
June 17 Rick Cornelison, a general laborer in Respond-
ent's shop, contacted his brother-in-law, Harold Wick, a
business agent for the Union, and arranged a meeting of
employees at the union hall after work on June 19. All
the employees, which then included Rick Cornelison and
his brother John, both general laborers, Ron Lowe, a
general laborer and truckdriver, and Orlie Stahl, the
tractor-trailer driver, attended. Wick discussed with
them the process of organizing a union and obtained
from all four signed cards authorizing the Union to rep-
resent them. At that point the Union represented all of
Respondent's employees.
B. The Union's Request for Recognition
Prior to setting up Respondent Company in June 1978,
Oliver has been vice president of Alumco Industries
which was engaged in the rain gutter and downspout
business. On June 20, the day after Respondent's employ-
ees met in the union hall, Oliver received a telephone
call from a supervisor at Alumco who told him he was
in for a surprise, that the Union was calling on him. That
afternoon Wick and a fellow union business agent,
Gerald Anderson, called on Oliver. They requested that
he recognize and bargain with the Union as the repre-
sentative of his employees and presented him with a
letter to the effect that the Union represented a majority
of them. They offered to submit their authorization cards
to an impartial person for examination and count. Oliver
refused the request by telling them to first see Alumco
and then he would talk with them. The union agents
then left.
That same day the Union petitioned the Board for an
election.3 In a telephone conversation the following day
the parties agreed to schedule the election for July 26.
However, prior thereto unfair labor practice charges in
Case 8-CA-12968 were filed by the Union against Re-
spondent effectively blocking further processing of the
representation case.4
The parties agree, and I find, that the following em-
ployees of Respondent constitute a unit appropriate for
the purpose of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time machine opera-
tors and truckdrivers, but excluding all office cleri-
cal employees, professional employees, guards and
supervisors as defined in the i.ct.
Ordinarily a question of whether the Union represents
the employees in that unit would be determined by a
Board election. But, as found hereinafter, Respondent
3 The representation proceeding is identified as Case 8-RC-11843.
4 These blocking charges were later withdrawn when the charges on
which the present complaint is based were filed.
here has engaged in unfair labor practices which impede
that election process. Accordingly, since 100 percent of
the employees had executed valid cards authorizing the
Union to represent them at the time the Union requested
recognition on June 20, 1 find Respondent had a duty to
recognize and bargain with the Union as of that time and
its failure to do so violated Section 8(a)(5) of the Act.
N.LR.B. v. Gissel Packing Co., 395 U.S. 575, 614 (1969).
C. The Poll
After Wick and Anderson left him on June 20, Oliver
went out into the shop and polled three of his four em-
ployees. He first went to Rick Cornelison and, according
to Rick, whom I credit, said, "Rick, what in the hell are
you trying to pull going down to the Teamsters hall and
organizing a union, and with two men, are your kidding,
I'll close up first." Both Rick and Oliver agree that he
also asked Rick why he wanted a union. They also agree
that Rick did not respond to Oliver's questions.
After talking with Rick, Oliver went to his brother
John Cornelison and asked, "Johnnie, did you go to the
union?" John admitted he had. Oliver then asked the fol-
lowing, "Why, Johnnie, you and I work together every
day, if you had a problem, why didn't you come to me?"
John indicated he wanted security. Oliver said, "What
kind of security, Johnnie, with your poor attendance
record, I haven't done anything to you."
Oliver then went to Stahl and asked, "Orlie, did you
go to the union?" Stahl admitted he had. Oliver then
asked, "What for, Ollie?" Stahl replied, "I want a pen-
sion and a raise." Oliver replied, "My god, Orlie, I can't
give you a raise, you have caused over $6,000 in
damage." Oliver testified that in effect he asked Stahl,
"Did you vote for the union," and that he so described
his language in a pretrial affidavit. Stahl placed their
conversation on June 21 but I credit Oliver that it oc-
curred on June 20 because it was a logical continuation
of the poll he had begun with the Cornelison brothers. I
find that Stahl was mistaken about the date. Respecting
the conversation, however, he testified without contra-
diction that Oliver "told me that he couldn't afford to
deal with the union and that they weren't worth a s-
and all they wanted was my money." I find that Oliver
made this statement and that it was an indication of his
animosity toward the Union.
Oliver did not question his fourth employee, Ron
Lowe, because on June 20 Lowe was out of the plant
making deliveries. The following day, June 21, however,
Lowe came up to Oliver in the shop and mentioned the
Union, saying he was no longer interested in it. Oliver
walked away, saying he did not want to hear about it.
A day or two later, according to Stahl, whom I credit,
Oliver again approached him in the plant and, referring
to the Union, told Stahl he would close down the plant,
put it into his wife's name, and start over somewhere else
if he had to. He also offered to let Stahl invest $10,000 in
the Company, an offer which Stahl refused. Again in late
July, according to Stahl, whom I credit, Oliver again ap-
proached him at a time when Stahl was wearing a union
78
COIL-ACC, INC.
buttons and again said something about closing the plant
in Toledo and moving his operations to his warehouse
facility in Chicago. He asked Stahl to move with him to
Chicago, saying he had too much time and money in-
vested in Stahl. Although Stahl inquired whether the
prospective move was because of the Union, Oliver did
not reply. Stahl refused his offer to move to Chicago.
The General Counsel, citing Sullivan Electric Company,
199 NLRB 809, 810 (1972), and Nation-Wide Plastics Co.,
Inc., 197 NLRB 996 (1972), contends that Respondent
violated Section 8(a)(5) of the Act by refusing to deal
with the Union after Oliver had conducted a poll of em-
ployees which demonstrated that a majority supported
the Union. But, as pointed out by Respondent, the poll
did not demonstrate majority support for the Union. It
demonstrated only that 50 percent of the employees had
sought out the Union. Lowe was never polled and on
June 21 indicated he was not interested in the Union. Al-
though Oliver did poll Rick Cornelison, the evidence
fails to show that Rick responded. In fact the evidence
indicates he did not respond. Accordingly, this allegation
fails for lack of proof.
The poll as conducted by Oliver, however, did run
afoul of Section 8(a)(l) of the Act because it was not
conducted with the accompanying safeguards which the
Board requires, and absent these safeguards Oliver's
questions were coercive interrogations impinging on the
employees' Section 7 rights. Struksnes Construction Co.,
Inc., 165 NLRB 1062, 1063 (1967). Oliver's conversations
with Rick Cornelison on June 20 and with Stahl later
also violated Section 8(a)(1) because they blatantly
threatened that he would close the shop and start over
somewhere else in order to escape the Union.
D. The Termination of Rick Cornelison
The complaint alleges that on June 22 Respondent laid
off or terminated Rick Cornelison, and since has failed to
reinstate him, for the reason that he had joined, support-
ed, assisted, or favored the Union or that Respondent be-
lieved he did. Respondent denied this and sought to
show that he was terminated for various other reasons.
Thus, in connection with investigation of union charges
against Respondent in Case 8-CA-12968, Oliver on July
10 wrote to the Board's Regional Office indicating that
Rick Cornelison was laid off (a) because of a poor at-
tendance record, (b) because, contrary to Oliver's expec-
tations when he hired him, he proved unable to stage
common carrier orders, ship United Parcel orders, drive
a forklift truck or properly load trucks, and (c) because
Oliver received many complaints regarding elbows he
had fabricated. On September 14, in connection with the
Board's investigation of the charges on which the
present complaint is based, Oliver again wrote the
Board's Regional Office summarizing the above reasons
for Rick Cornelison's termination and adding the reason
that Darryl Carr, a working supervisor at Alumco whom
Oliver had long sought to hire, became available and
Oliver terminated Rick Cornelison because he preferred
to have Carr as an employee. At the hearing herein
m Even after Oliver refused to deal with the Union, Stahl continued
wearing his union button about half the time while he was working.
Oliver added still another point by testifying that on
June 22 he told Rick Cornelison that that was his last
day and he was laying him off because of lack of work.
In sum, Respondent asserts that Rick Cornelison was ter-
minated for valid business considerations rather than for
reasons proscribed by the Act. This is, therefore, a dual
motive termination which is appropriately evaluated pur-
suant to the standards set for in Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980).
Under the first Wright Line test, I find that the Gener-
al Counsel has made a prima facie case that Rick Corneli-
son was discharged on June 22 for discriminatory rea-
sons. It is undisputed that Oliver knew that union busi-
ness agent Wick was his brother-in-law. It is also undis-
puted that the so-called layoff of Rick Cornelison oc-
curred within 2 days of the Union's request for recogni-
tion and bargaining based on its claim that it represented
a majority of Respondent's employees and Oliver's inter-
rogation of three employees, including Rick Cornelison,
and his threats of plant closure, thereby demonstrating
his animus toward the Union and his belief that all those
interrogated had gone to the Union. It is also undisputed
that Oliver spent considerable time in the shop among
his small complement of employees. In these circum-
stances I find that Oliver knew of Rick Cornelison's in-
volvement with the Union and most certainly believed
that he was a union supporter. Circle K Corporation, 173
NLRB 713, 715 (1968). In addition the timing of the dis-
charge together with its unexplained suddeness without
notice warrant the inference that Oliver was aware of
the undisputed fact that Rick was a key figure in con-
tacting the Union. Richard L. Cannady and Jane Can-
nady d/b/a Bob White Target Company, 189 NLRB 913,
921 (1971); M. J. Pirolli & Sons, 194 NLRB 241, 245
(1971). Respondent's normal workweek is from Monday
morning until Saturday noon. Rick Cornelison was ter-
minated suddenly and without notice on Friday after-
noon before the end of the workweek. There being no
explanation for the abruptness of the discharge within
the workweek, an inference of discriminatory motive is
warranted. Circle K Corp., supra.
The evidence demonstrates that the reason given Rick
for his layoff, namely, lack of work, was a false reason.
A plentiful supply of raw material was on hand and Re-
spondent's normal operations call for continuous process-
ing of this material to provide an adequate inventory for
filling of incoming orders. There is no evidence that in-
ventories were excessive. The day before Oliver had told
the shop crew that they were overstaying their breaks
and that he needed more elbows. He would not likely
have so stated if in fact he was running out of work for
the employees. The day after Rick was terminated he
was replaced by a newly hired casual employee, Rex
Dalton, who continued working for 2 weeks. At the end
of Dalton's 2 weeks, another new employee, Randy
Duvall was hired to replace him. Both Dalton and
Duvall performed the elbow work which Rick Corneli-
son had previously done. At the time of the hearing Re-
spondent had made no move to recall Rick. In fact, he
was not recalled until May 15, 1980. Although Rick was
told he was laid off, he was actually terminated. Oliver
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that he does not discharge employees but only
lays them off so they may claim unemployment compen-
sation without problems. The lack of work reason of-
fered by Oliver to Rick is further put in question by Re-
spondent's failure to rely on this point during the investi-
gative stages of this proceeding or during the hearing.
The General Counsel offered the testimony of Rick Cor-
nelison himself, which testimony I credit, that at the time
he was terminated Oliver said to him, "You are laid off
effective immediately." Rick then asked, "Why," and
Oliver explained, "We have no coil and I think you
really know why." Further corroboration of Oliver's
motive is found in his statement to Stahl on June 20 that
he could not afford to deal with the Union.
The General Counsel having made out a prima facie
case of discriminatory motive in the discharge of Rick
Cornelison, the question arises under Wright Line. Inc.,
supra, whether Respondent would have discharged him
when it did in the absence of union activity. Oliver testi-
fied that he hired him on May 15 because he understood
he had experience which qualified him not only to oper-
ate the machines in the shop but also to operate the fork-
lift and to handle the loading and unloading of trucks
and carriers. According to Oliver he was disappointed in
him. He testified Rick could not operate the forklift, al-
though Rick testified without contradiction that his oper-
ation of the forklift was never criticized. Oliver also tes-
tified that Rick had too many problems was never criti-
cized. Oliver also testified that Rick had too many prob-
lems staging loads for common carriers, that he did not
know the paperwork required, and did not know the
product sufficiently well. As a result, according to
Oliver, he put Rick to work on the elbow machines
where his efforts were the most helpful, and in the mean-
time Oliver searched for someone to replace him. It is
true that Rick spent about 80 percent of working time on
the elbow machines. But he also loaded and unloaded
trucks, if not common carriers, and was engaged in such
loading at the time Oliver discharged him.
From the time Oliver left Alumco and established Re-
spondent's business, he had been interested in employing
Darryl Carr as a working supervisor to assist him by
both supervising and working in the shop. Carr had had
extensive experience at Alumco in shopwork and super-
vision. Just after Oliver left Alumco he offered Carr a
job but Carr did not accept then. In February and again
in March 1979 Oliver repeated his offer of employment
without success. Then in the first part of June, Carr de-
cided he would leave Alumco and contacted Oliver and
they met on June 16 at which time Oliver made him a
specific offer. According to Carr, whom I credit, he re-
jected the offer at that time because he wanted to think
about it further. Then on Tuesday, June 19, he gave
Aumco I week's notice and at 6 o'clock in the evening
telephoned Oliver that he was ready to move. Although
Oliver wanted him to report the next day, Carr de-
murred and they agreed he would start work with Re-
spondent on Monday, June 25.
In the meantime, he filed an employment application
with Respondent on Friday, June 22, the same day
Oliver discharged Rick Cornelison. Oliver testified that
on the evening of Tuesday, June 19, he knew he had to
eliminate one employee because he could only afford a
four-man crew, and of the four he considered Rick Cor-
nelison the most expendable. There is no evidence that at
that point Oliver knew of any union activity. He testified
that he needed Stahl, the only employee licensed to op-
erate tractor-trailers. He considered John Cornelison the
best all-around general laborer in the operation of ma-
chinery in the shop. His testimony indicates that he con-
sidered Ron Lowe more valuable than Rick Cornelison
because Lowe had acquired a license to operate a truck
for short hauls. The thrust of his testimony seems to be
that Carr was intended to replace Rick Cornelison. But
that is not what happened. The evidence indicates that
Carr operated the elbow machine at most 5 hours per
week while Rick had spent 80 percent of his time in that
work.
As already noted, there was in fact no shortage of
work in the shop. On Saturday, June 23, the day after
Oliver discharged Rick, his brother John Cornelison did
not show up for work. Oliver did not recall Rick but in-
stead called in Stahl's brother to substitute for that day
in filling a rush order. On Monday, June 25, although
Carr reported for work, John Cornelison did not. This
left only Stahl and Lowe on duty as rank-and-file em-
ployees. Yet Oliver did not recall Rick. Instead, he hired
John Spaulding who had no experience whatever in Re-
spondent's line of work. Later he hired Randy Duvall in-
stead of recalling Rick. Oliver justified this on the
ground that Duvall was better qualified than Rick. But,
even if this were so, Oliver continued to hire additional
help on a temporary basis without recalling Rick. In ad-
dition to part-time help in midsummer Oliver recalled
John Cornelison in addition to having employed as tem-
poraries his brother Perry and employee Charles Collins.
In support of his position Oliver testified that it was
Respondent's practice to give new employees a raise
after 30 days and that Rick was not given such a raise,
because, according to Oliver, he had a poor attendance
record and because of his work habits, which Oliver did
not specify. The fact that Oliver did not give him a raise
after 30 days I deem to be immaterial because Oliver ad-
mittedly hired him at more than the beginning rate at the
time he started. Further. Oliver admitted that other em-
ployees had attendance records equally as poor as Rick
Cornelison. And in any case Rick's attendance record
does not in fact appear to be that bad. Although he was
tardy on five occasions during the period of employ-
ment, Oliver admitted that he worked considerable over-
time and also that the shop did not have a uniform start-
ing time. Without condoning tardiness, it is obvious that
tardiness was not normally deemed a significant fault in
Respondent's shop.
Oliver also gave as a reason for discharging Rick the
fact that he had received complaints from customers
about defective elbows. Although he had never criticized
Rick for any of his work, and in fact had complimented
him, telling him to keep up the good work, he gave him
the defective elbows to rework. But whether in fact the
defective elbows were Rick's fault is unclear because
others were also fabricating elbows and, as Oliver ad-
mitted, it was impossible to tell who made a bad elbow.
80
COIL-ACC, INC.
In the past Respondent has laid off a full-time employ-
ee on only one occasion, following Christmas 1978 be-
cause of a lack of work. As Oliver testified, his season
ran down. The busy season is in the summer and, as
shown by Respondent's continued hiring of new people
after Rick's discharge, lack of work was not a valid
reason for discharging him.
The above evidence is not sufficient to establish that
Respondent would have discharged Rick Cornelison
even in the absence of union activity. The coincidence in
timing between the Union's demands for recognition and
Rick's discharge is very suspicious, as is the unexplained
suddenness of the discharge without notice. Another sus-
picious circumstance is the fictitious reason Oliver gave
to him for the discharge; namely, lack of work. I also
find significant the failure of Oliver to recall Rick, an ex-
perienced employee, rather than hiring a parade of new
employees.
It is also significant that Oliver shifted his grounds for
discharge from the one which he gave Rick Cornelison
at the time of discharge to the reasons which he first of-
fered to the Regional Office and then later reoffered, but
with additions as noted above. In these circumstances
those justifications are not persuasive. Accordingly, I
find that a preponderance of the credible evidence fails
to establish that Rick Cornelison would have been dis-
charge in the absence of union activity. Thus, the Gener-
al Counsel's prima facie case being unrebutted, I find that
Respondent's discharge of Rick Cornelison on June 22
and its failure thereafter to reinstate him violated Section
8(a)(3) of the Act.
E. The Termination of Orlie Stahl
Respondent hired Orlie Stahl in February as a tractor-
trailer driver. The complaint alleges, and the answer
denies, that on August 23 Respondent terminated him be-
cause of his union activity. In spite of its answer Re-
spondent's post-hearing brief admits that Stahl was effec-
tively terminated on August 23. He was relieved of his
duties as a driver and offered temporary work as a gen-
eral laborer for a week at a lower rate of pay while he
looked around for other employment, an offer which he
refused. Respondent justifies the termination on the
ground that Stahl was responsible for a series of mishaps
which justified discharge. The issue, therefore, is wheth-
er his termination was discriminatory or for valid busi-
ness reasons, an issue appropriately tested under the
standards of Wright Line, Inc., supra.
As already noted, Stahl was among employees who on
June 19 met at the union hall and executed union author-
ization cards. Wick at that time also distributed union
buttons to the employees. Thereafter Stahl wore his
union button and, even after Respondent's refusal to rec-
ognize the Union and the discharge of Rick Cornelison,
continued to wear it about half of the time, thereby dis-
playing his continued support of the Union. Oliver knew
on June 20 that Stahl had gone to the Union and I infer,
based on Stahl's display thereafter of his union button,
that Oliver knew he continued to be a union supporter.
Some of the same general reasons which support the
finding of a prima facie discriminatory discharge of Rick
Cornelison support a similar finding of discriminatory
discharge in the case of Stahl. In Stahl's case the coinci-
dence of timing between the Union's request for recogni-
tion and discharge are not as dramatic but nevertheless
are persuasive in view of Stahl's continuing union activi-
ty in the face of Oliver's animosity demonstrated by his
unlawful interrogations and threats of plant closure.
Oliver testified that he began looking for a replacement
for Stahl in June because of an accident in which he was
involved on June I and that he held up discharging him
because of "the union problem." He first learned of the
union problem on June 20 when he received the call
from Alumco. After June 20 the Union continued to be a
factor for Oliver to consider. On June 26 the Union filed
its petition seeking an election (Case 8-RC-11843) and
on July 6 it filed the 8(a)(1), (3), and (5) charges in Case
8-RC-12968 which were withdrawn when the instant
charges were filed August 3. Thus, Stahl's continued and
overt involvement with the Union in the circumstances
above described warrants the inference that it played a
part in Oliver's reasons for discharging him on August
23. Accordingly, under the first standard of Wright Line,
Inc., supra, I find that the General Counsel has made a
prima facie case of discriminatory discharge.
Respondent contends that Stahl was terminated be-
cause he had been responsible for too many accidents.
Respondent's tractor-trailer equipment which Stahl oper-
ated consisted of a tractor leased from Avis Leasing Cor-
poration and a trailer leased from Convoy Trailers Sys-
tems, Inc. Stahl's first accident occurred in March when
he drove his rig under a viaduct too low to clear the
trailer and tore the top off the trailer requiring repairs
costing $2,769. The incident provided clear grounds for
discharge because Stahl was plainly at fault and the dam-
ages were substantial. But Oliver did not fire him. He
testified that he needed a tractor-trailer driver and Stahl
was then still a new employee.
Stahl's second accident, which was of a minor nature,
occurred in late spring when he was making a delivery
to Clay Spouting, a customer of Respondent. In backing
his rig into the customer's dock, Stahl struck the gutter
of the building thereby damaging it. The customer told
him not to worry about it because they were in the
gutter business and would replace it themselves. Stahl in-
formed Oliver about the accident but the customer has
never submitted a bill for the damage. The General
Counsel seems to take the position that the incident
should be ignored because it was minor and Respondent
is not out of pocket for the damage done. However, it
cannot be viewed as minor for business purposes because
the incident involved damage to a customer's property
and, although Oliver did not take action against Stahl at
that time, he would have been justified in doing so.
The third accident occurred June I when Stahl failed
to observe a tree limb overhanging a street and the
upper right corner of his trailer caught the limb thereby
damaging the trailer. At the hearing herein the General
Counsel sought to demonstrate that the accident was un-
avoidable because the center line on the street had been
moved to Stahl's right because of construction on the
left. But there is no evidence that Stahl's vision of the
tree was obscured nor any evidence as to why, in town
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
traffic, he was unable to simply stop to avoid the colli-
sion. On the evidence in this record he again plainly was
at fault. The town police at the site of the accident, who
did not issue him a citation, estimated the damage to the
trailer at $150. Stahl reported the accident to Oliver who
instructed him to continue using the trailer and it was
not returned to Convoy for repairs until sometime later.
By that time air pressure had inflicted additional damage
by tearing the metal covering on the trailer more than
had been initially caused by the accident. The repairs by
Convoy amounted to $2,320. In addition, while the trail-
er was down for repairs, Respondent had to continue
paying for its rental and also pay rental for a replace-
ment trailer which amounted to $845. The total cost to
Respondent was $3,165. The General Counsel argues
that Stahl was not responsible for this extensive damage
and in fact was only responsible for a minor portion of it,
$150 as estimated by the police. But there is no indica-
tion that the police examination was anything but per-
functory. And while it is clear that continued use of the
trailer caused further tearing in the surface of the trailer,
even Stahl's testimony does not indicate that the addi-
tional tearing was the major portion of the damage. Fur-
ther, Convoy's repair of the equipment revealed structur-
al damage in that the right front post of the trailer was
fractured. Thus, and without finding precisely what por-
tion of the damage was due to the accident as distin-
guished from that due to Oliver's failure to immediately
have it repaired, it is clear that the equipment was sub-
stantially damaged as the result of Stahl's faulty oper-
ation of his vehicle. Again, Oliver did not discharge
Stahl at the time of the accident. And even at the time of
discharge, he did not assess all of the cost against Stahl
because he then only had an estimate that the damages
would amount to about $2,000 and apparently over-
looked the cost involved in the rental of the replacement
trailer.
Although Stahl was the only employee licensed to op-
erate a tractor-trailer, Ron Lowe had gotten a license
qualifying him to operate an ordinary truck. For local
deliveries and short hauls Respondent leased from Avis a
new Mercedes truck. The testimony of Oliver indicates
that Respondent took possession of the vehicle in early
July and that Lowe normally operated it. On August 7
Stahl at Oliver's direction used the Mercedes to make a
delivery. After he had gone 7 or 8 miles the truck broke
down and was towed away by Avis for repairs. Exami-
nation during repairs revealed that the center hub was
torn from the clutch disc which, in the opinion of the
Mercedes representative, resulted from the driver down-
shifting from too high a speed. Avis refused to honor the
warranty on the vehicle and charged Respondent $262
for repairs. The General Counsel urges that Respondent
has not shown that Stahl was responsible for the break-
down because he had only driven it a few miles and
most of the time it had been operated by Lowe who did
not have a good driving record. For the purposes of re-
solving the issue at hand, however, it is unnecessary to
go beyond the fact that the breakdown occurred while
Stahl was driving and that the professional opinion of
those involved in repairing the vehicle was that it result-
ed from unnecessary downshifting. In these circum-
stances it was not unreasonable for Oliver to hold Stahl
responsible for the damage to the vehicle.
The final incidents involved another customer of Re-
spondent called Custom Gutter. In late July or early
August, as Stahl was backing the tractor-trailer to unload
an order at the dock of Custom Gutter, the trailer
nudged the customer's building. Although Stahl testified
he had no knowledge of any damage, the customer com-
plained to Oliver and Oliver inspected the building since
only Respondent's tractor-trailer delivered to that dock.
He concluded that the damage was not "that bad." But
then on August 23 as Stahl was making another delivery
to Custom Gutter, he again nudged the building with his
trailer. Oliver did not inspect the building on this occa-
sion. In discharging Stahl he assessed liability against him
for the first incident in the amount of $650 and indicated
that the damage in the second incident was unknown. I
agree with his initial estimate that the damage was not
that bad and I find that both incidents were minor. Nev-
ertheless, from a business point of view they had serious
implications because they involved property of a custom-
er who, whether for good or bad reason or no reason at
all, was in a position to take his business elsewhere. The
General Counsel endeavored to show that the damage to
the Custom Gutter building could have been caused by
drivers delivering to a neighboring dock who found it
convenient to back their rigs into the approach to
Custom Gutter's dock in order to turn around. I discount
the argument and the evidence on this point because the
record also shows that the distance into Custom Gutter's
dock is approximately 60 feet and it seems unlikely that
drivers delivering to other business would back in that
far and thereby collide with Custom Gutter's building if
in fact they were not making a delivery there.
The General Counsel endeavors to diminish the impact
of Respondent's evidence by pointing out that Stahl had
never been warned or disciplined for his accidents.
There is, however, no evidence that any other employee
received warnings or reprimands and from the record as
a whole I infer that Oliver did not follow a standard
practice of warning or of disciplining employees. In fact
the Company's entire employment policy appears to be
somewhat informal, if not capricious, from the employ-
ees' point of view.
By an invoice dated August 20, Avis billed Respond-
ent for $262 for the repaired Mercedes clutch. The
record does not show exactly when this bill was re-
ceived but, allowing a reasonable time for the mails, I
find that Oliver received it on or about August 22. By
this time both Avis and Convoy had indicated verbally
to Oliver that he should get a new driver. He testified
that on that day he decided to terminate Stahl because of
the clutch incident and prepared a discharge letter to
that effect. However, Stahl was not in the shop that day
and Oliver was unable to deliver it to him.
The General Counsel contends that Respondent has
treated Stahl disparately because its other driver, Ron
Lowe, also experienced a number of difficulties but was
only suspended for 3 days instead of discharged. Many
of the Lowe incidents, including this one, occurred after
Stahl's discharge. On July 6, prior to Stahl's discharge,
82
COIL-ACC, INC.
Lowe had backed his truck into a car, for which he re-
ceived a citation for not exercising good judgment. A
few days later on July 11 he received a citation for
speeding. On August 9 he was involved in an accident
resulting in $901 damage. On November 3, subsequent to
Stahl's discharge, Lowe was injured when a 400-pound
coil dropped on his hand. There is no evidence in the
record of responsibility for the incident. On February 2,
1980, he received a citation for speeding. Finally, on
March 25, 1980, Oliver suspended him for 3 days be-
cause he failed to complete a run. Only the last of these
incidents arguably involved a customer of Respondent,
and that is not specifically established. The damage
caused in the August 9 accident was not insignificant
but, on the other hand, was not nearly as substantial as
the total accumulated damage attributable to Stahl in the
operation of his tractor-trailer. Considering that Oliver
operates a small enterprise without well-established pro-
cedures, I find that the differences, if any, between the
way he treated Stahl and the way he treated Lowe are
not sufficient to support an inference of discrimination in
Stahl's case. I find instead that, as early as June, when
Oliver hoped to hire a better driver from Alumo, one
James Goode, Oliver had been thinking of replacing
Stahl because of the problems already accumulated. Oli-
ver's receipt of the Avis bill of August 20 for the repair
of the Mercedes clutch precipitated his final decision to
terminate Stahl. That was a valid business reason. Except
for Stahl's continued display of his union button, no
other union activity engaged in by him personally
around that time suggests that Oliver acted for reasons
of discrimination rather than for valid business reasons. I
find that Respondent has satisfied the second Wright Line
test by demonstrating that it would have discharged
Stahl even if he had not engaged in union activities. Ac-
cordingly, I find that a preponderance of the evidence
fails to establish that Stahl was discharged and thereafter
not reinstated because he engaged in union or other ac-
tivity protected under the Act.
F. The Gissel Question
The General Counsel urges that the Union is entitled
to an order requiring the Company to bargain with it as
the majority representative of its employees under the
doctrine of N.L.R.B. v. Gissel Packing Co., supra. I agree.
Where, as here, the employer has engaged in unfair
labor practices, the question arises as to whether they
tend to undermine the Union's majority strength and
impede the election process. Here, Respondent has not
only engaged in coercive conduct toward all its employ-
ees by interrogating three-fourths of them immediately
after the Union requested recognition and by threatening
half of them with plant closure, but also by discharging
one of them 2 days later because of his union involve-
ment and thereafter assiduously avoiding his recall. The
Board has long held that discrimination against employ-
ees because of union activities is a serious unfair labor
practice which "goes to the very heart of the Act" (A. J.
Krajewski Manufacturing Co., Inc., 180 NLRB 1071
(1970)) and is the "surest method of undermining a
union's majority or impeding an election process"
(N.LR.B. v. Sitton Tank Co., 467 F.2d 1371, 1372 (8th
Cir. 1972)). The lingering effects of unlawful conduct
may not be cured by traditional Board remedies with the
result that the chance of a fair Board election is slight. I
find that the nature of the unfair labor practices in this
case have that effect. In these circumstances the Union's
majority status as indicated by the authorization cards
executed by all of the employees in the bargaining unit at
the time of the request for recognition is reliably estab-
lished and provides an adequate basis for a bargaining
Order. N.LR.B. v. Gissel Packing Co., supra, 395 U.S. at
614; Richard Tischler, etc. d/b/a Devon Gables Nursing
Home, etc., 237 NLRB 775 (1978).
Ill. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section II, above, occurring in connection with the oper-
ations described in section I, above, have a close and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent threatened, coerced, and restrained its
employees in the exercise of the rights guaranteed in
Section 7 of the Act by the following conduct:
(a) Interrogating its employees as to whether they had
gone to the Union.
(b) Threatening its employees that the shop would be
closed if the Union represented them.
4. By discharging employee Rick Cornelison on June
22, 1979, and thereafter failing to reinstate him, Respond-
ent discouraged membership in the Union and discrimi-
nated against him because he engaged in union activities,
thereby committing unfair labor practices prohibited by
Section 8(aX3) of the Act.
5. By terminating Orlie Stahl on August 23, 1979, and
thereafter not reinstating him Respondent did not
commit unfair labor practices prohibited by the Act.
6. All full-time and regular part-time machine opera-
tors and truckdrivers, excluding all office clerical em-
ployees, professional employees, guards and supervisors
as defined in the Act, employed by Respondent at its
Toledo, Ohio, shop constitute a unit appropriate for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
7. Since June 19, 1979, the Union has been, and is
now, the exclusive representative of all employees in the
above described unit for the purpose of collective bar-
gaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment
by virtue of Section 9(a) of the Act.
8. Respondent, by failing and refusing to recognize and
bargain with the Union as the exclusive bargaining repre-
sentative of the employees in the above-described unit
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since the Union requested such recognition and bargain-
ing on June 20, 1979, committed unfair labor practices
within the meaning of Section 8(aX5) of the Act.
9. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated Section
8(a)(1), (3), and (5) of the Act, I recommend that it be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act. Even though Respondent's unfair labor practices
are of a nature which tend to taint the laboratory condi-
tions necessary and desirable for a Board election, I do
not recommend what is commonly referred to as a broad
order because Respondent is not shown to have a pro-
clivity for violating the Act nor has it engaged in egre-
gious or widespread misconduct demonstrating a general
disregard of employee statutory rights. Hickmott Foods,
Inc., 242 NLRB 1357 (1979).
Because of the discrimination against him as found
hereinabove Rick Cornelison is entitled to be made
whole. Even though Respondent by its attorney's letter
of May 15, 1980, appears to have offered to make Rick
Cornelison whole for that discrimination, the fulfillment
thereof is appropriately a matter for compliance and,
pending compliance, it is appropriate that the usual re-
medial order be entered. Accordingly, I recommend that
Respondent be ordered to offer Rick Cornelison immedi-
ate and full reinstatement to his former position or, if
that position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
benefits and privileges, and that he be made whole for
any loss of earnings incurred as a result of being dis-
charged on June 22, 1979, with backpay to be computed
as prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and with interest as set forth in Isis Plumbing
& Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977). I further recommend
that Respondent be required to preserve and make avail-
able to Board agents, upon request, all pertinent records
and data necessary in analyzing and determining what-
ever backpay may be due.
Inasmuch as Respondent's violations of Section 8(a)(1)
and (3) of the Act tend to undermine the Union's major-
ity thereby impeding the electoral process, with the
result that an election under Board auspicies would
likely be a less reliable guide to employee free choice
than the authorization cards by which they designated
the Union to represent them, and because Respondent, in
refusing to recognize and bargain with the Union while
engaging in those unfair practices, violated Section
8(a)(5) and (1) of the Act, I recommended that Respond-
ent be required to recognize and bargain with the Union
as well as to remedy the unfair labor practices found.
N.LR.B. v. Gissel Packing Co., supra; Federal Prescription
Service, Inc., 203 NLRB 975 (1973), enfd. as modified 496
F.2d 813, 819 (8th Cir. 1974).
I further recommend that Respondent post the appro-
priate notices.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER6
The Respondent, Coil, ACC, Inc., Toledo, Ohio, its
officers, agents, successors, assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees respecting
their union activities.
(b) Threatening to close the shop if the Union repre-
sents the employees.
(c) Discharging or otherwise discriminating against
employees because they engaged in union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist a labor organization, to bargain collectively
through representatives of of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Rick Cornelison immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any
loss of earnings or benefits he may have suffered by
reason of Respondent's discrimination against him as set
forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Recognize and, upon request, bargain collectively
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local
Union 20, as the exclusive bargaining representative since
June 20, 1979, of all employees in the appropriate bar-
gaining unit described below, and, if an understanding is
reached, embody such in a signed agreement. The appro-
priate unit is:
All full-time and regular part-time machine opera-
tors and truck drivers, but excluding all office cleri-
cal employees, professional employees, guards and
supervisors as defined in the National Labor Rela-
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein, shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
84
COIL-ACC, INC.
tions Act, employed at Respondent's Toledo, Ohio
shop.
(d) Post at Respondent's shop in Toledo, Ohio, copies
of the attached notice marked "Appendix." 7 Copies of
said notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respondent's
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
authorized representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that insofar as the complaint
alleges unfair labor practices not specifically found in
this Decision, such allegations are hereby dismissed.
85