Ducan Air Courier

National Labor Relations Board - Board Decisions

Aug 31, 1979

244 N.L.R.B. 755 (N.L.R.B. 1979)

DUN(CAN AIR COURIER
Duncan Air Courier, Division of Bruce Duncan Co.,
Inc. and Truck Drivers Local Union No. 807, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Case 29-
CA -5929
August 31, 1979
DECISION AND ORDER
BY CIIAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On April 10, 1979, Administrative Law Judge Ju-
lius Cohn issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief. Counsel for the General Counsel
also filed exceptions and a brief in support thereof.
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,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
The Administrative Law Judge's recommended Or-
der required Respondent to cease and desist from
"[i]n any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaran-
teed to them in Section 7 of the Act." (Emphasis sup-
plied.) The Board has recently reconsidered its policy
concerning such broad orders and has concluded that
narrow orders more responsive to the illegal conduct
of a particular violator of the Act would normally be
more appropriate. Hickmot Foods, Inc., 242 NLRB
1357 (1979). Accordingly, we shall modify the Ad-
ministrative Law Judge's recommended Order and
notice to provide that Respondent shall refrain from
"in any like or related manner" interfering with, re-
'The Administrative Law Judge found that employee Patnck Grillo was
suspended by Office Manager Marianne Kushnick for an indefinite period
on September 14. 1977. Counsel for the General Counsel excepted to this
finding. stressing that the evidence suggested strongly that Kushnick in fact
suspended Grillo for a definite period from Wednesday, September 14 to
Monday. September 19, 1977. Our careful review of the record in this pro-
ceeding has convinced us that the General Counsel's analysis is correct.
Accordingly, we hereby modify the Administrative Law Judge's factual find-
ing with respect to Grillo's suspension and conclude that Grillo was sus-
pended by Kushnick for a definite period from September 14 to 19. 1977
t In his Decision the Administrative Law Judge found specifically, on the
basis of record testimony, that Respondent threatened to shut down its op-
crations if its employees joined the Union, but then he inadvertently did not
include any reference to Respondent's threat in his formal findings. Accord-
ingly, we shall modify the Administrative Law Judge's Order and notice in
this respect.
We have also modified the Administrative Law Judge's notice to conform
with his recommended Order.
straining, or coercing its employees in the exercise of
their Section 7 rights.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent. Duncan
Air Courier, Division of Bruce Duncan Co., Inc..
Long Island City, New York, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Insert the following as paragraph (d) and re-
letter the subsequent paragraphs accordingly:
"(d) Threatening to close its operation if its em-
ployees join a union."
2. Substitute the following for the new paragraph
1(f):
"(f) In any like or related manner interfering with.
restraining, or coercing its employees in the exercise
of their rights guaranteed by Section 7 of the Act."
3. Substitute the attached notice tir 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
WE WILL NOT coercively interrogate employ-
ees concerning their union sympathies and ac-
tivities.
WE WILL NOT threaten to discharge employees
because they have engaged in union activities.
WE WILL NOT threaten to close our operations
if our employees join a union.
WE WILL NOT discharge or otherwise discrimi-
nate against any employee because of that em-
ployee's union sympathies or activities.
WE WILL NOT refuse to recognize and bargain
with Truck Drivers Local Union No. 807, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the
exclusive collective-bargaining representative of
our employees in the following unit:
All driver employees, employed by it at its
Long Island City location, exclusive of office
clerical employees, all other employees, guards
and all supervisors as defined in Section 2(11)
of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
244 NLRB No. 121
755
I)I (CISI()NS OF NA II()NA. LABOR RELATIONS BOARD)
the exercise of rights guaranteed them by Section
7 of the Act.
Wi: Wi.i. offer immediate and full reinstate-
ment to Patrick Grillo and Robert Vozzi to their
former jobs or, if' those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and WE wi. make them whole for their
loss of earnings, plus interest.
W- wIll., upon request, recognize and bargain
with Truck Drivers Local Union No. 807, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive bargaining representative of our em-
ployees in the bargaining unit set forth above,
with respect to wages, hours, and other terms
and conditions of employment; and, if an under-
standing is reached, wt wrl.l. embody such un-
derstanding in a signed agreement.
DUNCAN AIR COURIER, DIVISION OF BRUCE
DUNCAN CO., IN(C.
DECISION
SIAIEMFNr OF TIlE CASi
Jui.iUS CoiN. Administrative Law Judge: This case was
heard at Brooklyn. New York, on February 27 and March
30 and 31. 1978. Upon a charge filed September 22 and
served September 23, 1977, by Truck Drivers Local Union
No. 807, International Brotherhood of Teamsters. Chauf-
feurs. Warehousemen and Helpers of America. herein
called the Union, the Regional Director for Region 29 is-
sued a co.nplaint on November 7, 1977. alleging that Dun-
can Air Courier, Division of Bruce Duncan Co.. Inc., herein
called Respondent, had violated Section 8(a)( 1), (3). and (5)
of the Act.
The principal issues presented are whether Respondent
discharged two of its employees because of their activities
in behalf of' the Union. and whether Respondent interro-
gated and threatened employees in violation of Section
8(a)(1) of the Act. If these questions are decided in the
affirmative, there follows the issue as to whether Respon-
dent should be directed to bargain in view of such conduct.
All parties were given full opportunity to participate. to
produce revelant evidence, to examine and cross-examine
witnesses, to argue orally. and to file briefs. A brief sub-
mitted by Respondent and oral argument by General
Counsel have been carefully considered.
Upon the entire record of the case and from my observa-
tion of the witnesses and their demeanor I make the follow-
ing:
FINDINGS OF FA(I
1. TIHE BUSINESS OF RFSP()NI)F.NI
Respondent, Duncan Air Courier, is a division of Bruce
Duncan Co., Inc.. a corporation duly organized under and
existing by virtue of the laws of the State of California.
Respondent has maintained a principal office and place of
business in Chicago, Illinois, and also a place of' business at
Jackson Avenue in the county of Queens, New York City,
called the long Island City location. Duncan Air Courier
has offices only in Chicago and Long Island City. Respon-
dent is engaged in the freight forwarding business, and dur-
ing the year preceding issuance of' complaint in the course
of those operations it furnished or contracted for the inter-
state transportation of various freight and received gross
revenues from those activities in excess of $50,000. The
complaint alleges. Respondent admits, and I find that it is
an employer engaged in commerce within the meaning of'
Section 2(6) and (7) of the Act.
. 11. 1 I.ABt)R ()R(;ANIZAIION IN"O()IT II)
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. rill AlFLGFD UNFAIR l.ABO)R PRA(TI('S
A. Fats/.
Respondent operates a courier service which handles pri-
ority shipments from customers on either an overnight or
same-day basis. Packages or freight are picked up at the
airport in New York. principally John F. Kennedy Airport,
and then delivered to their destinations in New York City
immediately. Schedules are maintained around the clock 7
days a week. The principal portion of the Long Island City
business is concerned with the delivery of the checks to
banks in downtown New York City. The couriers pick up
the bundles of these checks at the airport and deliver them
at once to the main offices of the banks in lower Manhattan
in accordance with certain schedules which must be main-
tained. In addition to its work for banks Respondent also
handles a smaller amount of commercial shipments on the
same door-to-door basis.
The Long Island City office is and has been managed for
several years by Marianne Kushnick. During the latter part
of 1977 Respondent employed six courier drivers and main-
tained a number of cars and vans which the drivers used to
make their pickups and deliveries at the airport.'
As the events involved in this proceeding were all com-
pressed in a few days, they shall best be discussed chrono-
logically.
Patrick Grillo was employed as a driver since July 1976
and apparently had a good work record. In 1977 he had a
run from 3 a.m. when he went to the airport, picked up the
freight and packages, and delivered them to various loca-
tions in Manhattan. On September 14, in the course of his
normal run, he had picked up freight at the airport and had
already made a couple of deliveries in the city when he
went to the main office of the Manufacturer's Bank at ap-
proximately 5:30 a.m. to make a delivery. On the way out
of the building he saw a car parked next to his truck and
then saw someone enter the truck, shut the door, and roll
up the window. The car drove away followed by Respon-
It has been stipulated that the following employees were employed in the
appropriate unit as of September 16, 1977: Mark Jerome. Bruce Kushnick,
Patrick Grillo, Michael Videtto Robert Vozzi, and James Wilt.
756
DUNCAN AIR COURIER
dent's truck which Grillo chased, but after a few blocks
they got away. Grillo admits having left the keys to the
truck on the console next to the driver's seat.
Grillo then called the police and was taken down to the
first precinct in Manhattan where he made a stolen vehicle
report. Kushnick met him at the police station and drove
him back to the office; she was angered when he told her
that he had left the keys in the truck. She then told him to
go home and hold himself available in case someone
wanted to get in touch with him. He returned to the office
about 12:30 p.m. and went to the diner with Kushnick for
coffee. Grillo said that she told him that if any other driver
had done this she would have fired him on the spot, but that
he had never done anything like this. She said that she
would have to suspend him until Monday, September 19.
According to Kushnick, she received a call on September
14 before 6 a.m. from Grillo, who said that his van had
been stolen. She told him to call the police and to go with
them and fill out the reports. She met him at the police
station and found that he had already given a stolen vehicle
report and arranged to have the police send her a copy. On
the way back to the office she attempted to get from him
information as to what remained in the truck to be deliv-
ered so that she could notify the customers. but he was very
upset and she directed him to go home and return between
12 p.m. and I p.m. When he returned they went for coffee.
and she asked for a detailed description of what had hap-
pened so that she would be able to fill out insurance forms.
While at the coffee shop she also told Grillo that he was
suspended, and that she would have to discuss the matter
with Stuckenbrock, vice president and general manager of
Respondent.
With respect to the events of September 14 as detailed
above, the testimonies of Kushnick and Grillo are conflict-
ing as to the suspension. It is Grillo's testimony that he was
told by Kushnick that he was suspended until September
19. Kushnick states that she merely told him that he was
suspended. In his testimony Stuckenbrock also refers to
Grillo as being in a state of suspension during this time, and
that he had been told by Kushnick that Grillo was sus-
pended until further notice. James Witt. an employee. testi-
fied that he had a conversation with Kushnick on Septem-
ber 14. the day the truck was stolen, at the insistance of
Kushnick, who asked him whether he would consider as-
suming Grillo's run, an assignment that he had before
Grillo. He told her that he would have to consult his wife
about working those hours. Kushnick told him at that time
she did not know Grillo's status, and that it might be fbr a
period of time.' In this situation. Witt's testimony was sup-
portive of Kushnick since it did not make sense for her to
ask Witt to assume the run even on a temporary basis if
Grillo were suspended only until September 19. 1 find that
the suspension was for an indefinite period.
Although Grillo testified that he had no communication
with Kushnick on the following day, September 15, or on
Friday, Kushnick stated that Grillo came to the office on
2 In this and other matters to he hereinafter discussed I credit Witt not
only on the basis of his frank and forthright demeanor, but also because he
was the only witness to testify in this hearing who may be characterized as
free from bias. He testified pursuant to subpena, and while not a union
partisan his testimony as a whole was damaging to Respondent although he
was still employed.
Thursday and asked whether he was going to be suspended
or fired. Kushnick said that she told him she had to give it
more consideration but had been busy. He then said that if
he was going to be fired she should do it so that he could get
unemployment insurance. Kushnick further stated that
Grillo called again on September 16 and asked if his status
had been decided. She replied that she was still caught up
in paperwork and would call him over the weekend con-
cerning the matter.
But a determination as to whether Grillo visited the office
on Thursday and called on Friday is not crucial to the out-
come of this matter. Actually, the legality of Grillo's dis-
charge does not hinge on his credibility, the issue being
whether it was the result of his union activity or because he
had left his keys in the car which was stolen. a fact which he
freely admitted. Clearly his status between September 14
and 19 was uncertain and undoubtedly motivated him to
visit the Union. If indeed he had come to the office on
Thursday and called on Friday to inquire as to his status, as
Kushnick testified, the uncertainty would have been even
more apparent and therefore enforced his belief that he re-
quired representation.
On September 16 (;rillo decided that he ought to get a
union and called an employee at another compan who
recommended l.ocal 807. Grillo went to the office of the
Union and spoke to the president. Joe Mangan. who told
him about the benefits and the procedures. Girillo then
signed an authorization card and obtained cards tor the
other employees to sign. Grillo next went to the parking lot
adjoining the office at about 3:30 p.m. in order to meet
Vizzo and Videtto who would be returning from their runs
at about that time. Videtto testified that after finishing work
he met in the parking lot with Grillo and Vozzi. Grillo told
him that he was tr'ing to see about a union and the, talked
about possible benefits and what would happen if the
Union came in. As the' were talking they saw Witt and
Kushnick \walking toward the parking lot. Witt came o er
to join them, and Kushnick went by and left in her car.
Witt asked them what the5 were doing. and the, told him
that they had been talking about a union. at which point
Witt began to laugh. He said that Kushnick had asked him
what they were doing over there. and he replied that the!
were probably trying to form a union. According to
Videtto, Grillo then asked if the> wanted to sign cards. and
he replied that he would; so did Vozzi, but Witt said that he
did not know and would have to see. Videtto left. went to
his home nearby, and shortly thereafter Vozz7i and Grillo
came by and he signed an authorization card.
James Witt a courier driver since 1975 who is still em-
ployed by Respondent, testified that he left the office with
Kushnick about 4:35 p.m. on September 16. At that point
he knew that Grillo's truck had been stolen but was not
aware of an union activity. As he left the building with
Kushnick he saw Vozzi, Grillo. and Videtto standing at the
parking lot, which he thought was unusual. He commented
to Kushnick, jokingly, that it looks like Pat (Grillo) is hold-
ing a board of directors meeting. Kushnick just smiled, and
as they got closer Witt said, "It looks like Pat's forming a
union." He said that Grillo would make a hell of a shop
steward. Kushnick then looked at him and said. "If that's
the case, we might as well just close up and fo)rget about it."
Witt said that he was only kidding and making a joke.
757
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kushnick got in her car and drove away, and he continued
over to talk to the employees. He told Grillo that he was
sorry he was suspended, and the latter replied that he was
tired of being pushed around, and they were not going to
get away with that stuff. Witt told him to calm down since
he was only suspended. Grillo said that he had spoken to
someone at the Union, and a meeting had been set up for
Saturday afternoon which he asked Witt to attend. Witt
replied that it only takes one guy to sign a card in order to
start, so they did not need him there. He said that he would
talk again on Monday to see what developed. Witt told
Grillo that the Company was a small outfit, and if it was
pushed too hard it might fold up the shop and they would
all lose their jobs. He also told the employees what Kush-
nick had said to him in response to his jokes, that they will
just close up and forget about it. Witt stated that he did not
sign a union card that day or at any other time.
Witt also testified to a conversation he had with Kush-
nick during his first year of employment. They were dis-
cussing the labor problems which the parent corporation of
Respondent, Bruce Duncan Co., Inc., had had at the John
F. Kennedy Airport in New York. Kushnick told him that
they had closed a facility there rather than let a union come
in. She also told him that there had been violence and dam-
age to property.'
Kushnick testified that when she and Witt saw the em-
ployees at the parking lot Witt said that it looks like we
have a union here. She replied, "You're kidding aren't
you?" and he said, "Yes, I'm just joking." She then left. She
denies stating that she would close the shop down. She fur-
ther said that she did not take what Witt was saying seri-
ously and did not think that he might know of some organi-
zational drive. For the reasons stated above I credit Witt
consistently concerning his testimony.
After the incident at that parking lot on September 16
and the departure of Witt, Vozzi and Videtto signed autho-
rization cards. Grillo and Vozzi then went to a store in the
neighborhood of the home of Mark Jerome, another em-
ployee, where he signed an authorization card at about 5:30
p.m.
On Saturday, September 17. Grillo received a call from
Stuckenbrock in Chicago. Grillo testified that Stuckenbrock
told him that Kushnick had said he could go back to work
on Monday but he could not. However, Stuckenbrock said
that he could change this and take him back if the rumor he
heard was not true. Stuckenbrock said that it was the rumor
of organizing a union, to which Grillo replied that he did
not know anything about a union, but Stuckenbrock stated
that was not what he heard. He then told Grillo that if it is
not him, it is one of the other guys, and he wanted Grillo to
get together and tell them to forget about it or they would
all be fired on the spot. Finally, Stuckenbrock told him to
think it over and talk to the other guys and call back on
3Respondent contends that this testimony should not e considered in
view of the Board's finding involving Bruce Duncan Co., Inc.. in a prior case
that the company had permanently closed its John F. Kennedy Airport
office for economic considerations rather than for discriminatorily reasons.
In that case, however, the Board did find various violations of Sec. 8(aX I ) of
the Act. 233 NLRB 1243 (1977). I credit Witt with respect to his conversa-
tion with Kushnick concerning the shutdown at the airport, as it is indicative
of her belief as to what had occurred. The Board's decision issued long after
their discussion.
Sunday. When Grillo called Stuckenbrock on Sunday he
was told that he would have to discuss the matter with
Kushnick, who would get in touch with him that night.
Actually, Kushnick called him at about I a.m. on Septem-
ber 19. His run usually starts at 3 a.m., but she told him
that he was terminated and to bring his keys and credit card
to the office in the morning.
Stuckenbrock denied discussing the Union with Grillo on
Saturday, and he stated that he called Grillo in an attempt
to clarify his story concerning the stealing of the car. Stuck-
enbrock said that he could not buy Grillo's account of
being followed by a Cadillac and someone getting out of it
and into his van and driving away. I do not credit Stucken-
brock concerning his reason for the telephone call to Grillo.
The latter had frankly reported the theft and had admitted
the important fact that he had left the keys in the vehicle.
Indeed, Grillo had reported this to the police, a copy of that
report having already been obtained for Stuckenbrock by
one of his customers who had employed a private investiga-
tor. At that point Grillo's story concerning the Cadillac
seems scarecely to have been of any moment. Moreover, I
do not credit Stuckenbrock's statement that he was not
aware of any union activity at this time. I find that by then
Kushnick had become aware of the activities of the employ-
ees as a result of her encounter with Witt the day before
and having observed Grillo, Vozzi, and Videtto together
talking. These events and the context of her prior contact
with a union at the airport lead me to the conclusion that
she learned of the employees activities. Finally. it is incon-
ceivable that having such knowledge she should not have
communicated it to Stuckenbrock with whom she speaks
several times a day. Stuckenbrock confirmed that Grillo
called Sunday and telling him that he would hear from
Kushnick later that night.
The following morning. September 19. Grillo went to the
parking lot to await Vozzi. who was due to return about
10:30. He told Vozzi that he had been fired, and together
they went to visit the Union.
In the meantime Vozzi had awakened late that morning
and realized that it was too late to pick up the company
vehicle, go to the airport, obtain the freight. and make his
run into the city. He therefore called the office and spoke to
Manfred Kowall, who actually leases the office space uti-
lized by Respondent and has his own desk in the same
room. Kowall takes messages when Kushnick is not in.
Vozzi told him that he was going to the airport in his own
vehicle, which he did. He made the run into lower Manhat-
tan, missing the deadlines for his stops by about 30 minutes.
He then returned to the vicinity of the office. met Grillo.
who told him that he had been fired, and together they went
to the union office.
Grillo had the authorization cards with him, which he
gave to Mangan and told him what had occurred. Mangan
directed Hohmann, a union vice president, to talk to them
and visit Respondent's office. Upon arriving Hohmann in-
troduced himself to Kushnick and told her that the Union
represented a majority of the employees. Although Kush-
nick denied it, I find, based upon the testimonies of Respon-
dent's witnesses Stuckenbrock and Kowall, that Hohmann
also asked for recognition and for Respondent to deal with
the Union. Kowall. who was present during the confronta-
tion between Kushnick and Hohmann, Vozzi. and Grillo,
758
D)liN('AN AIR COURIER
testified that Hohmann told Kushnick that the Union
wanted Respondent to deal with it as representative of the
drivers. Stuckenbrock testified that in conversations he had
with Kushnick aft-r the meeting with Hohmann she in-
formed him that the Union wanted recognition. Hohmann
also requested Kushnick to reinstate Grillo. urging that oth-
erwise he would have to file charges with the Board which
would involve backpay fr Respondent. Kushnick refused.
According to Vozzi and Grillo. Kushnick also told Vozzi
that he was on her list to be fired and was fired, hut prior to
the end of the meeting she told him that he was suspended.
In any case, Kushnick agreed that she did suspend him at
the conclusion of the meeting. claiming that she made this
decision earlier that morning. Kushnick stated that she
called Vozzi the following day. September 20. and dis-
charged him. Vozzi, on the other hand. stated that she
called him September 21, told him that he was discharged.
but gave no reason for it. I credit Vozzi on this point, since
Kushnick was already discredited concerning these events
by the testimonies of Kowall and Stuckenbrock.
Kushnick contended that she fired Vozzi for his poor at-
titude, absences, and sickness and lateness, particularly on
September 19. As far back as November 24. 1976. she
warned Vozzi about oversleeping. In January 1977. he was
given extra duty for oversleeping and was suspended for 1
week in early 1977 for the same reason. In May of that year
she had a conference with Vozzi about his poor attitude. On
June 29 he was out sick, as he was also on August 10 and
September 15. This last occasion was only 4 days before he
was suspended, but Kushnick did not talk to him about it.
On September 19 Witt, as was his practice, called the
office between 12:30 p.m. and 1 p.m. Kushnick sounded
upset, but before he could say anything she asked, "Did
you sign too?". Witt asked what she was talking about, and
she replied that everybody else signed a union card and did
he sign too. He told her he had not, asked her to calm
down, and said that he would see her at the end of the run.
Witt stated that he knew she was referring to the signing of
a union card because he knew thai the employees were
going to sign with the Union Friday night after he left them
at the parking lot. Kushnick's version of this conversation is
that Witt asked if she was upset, and she inquired if he
knew what was going on. Then he asked whether she meant
if he is part of this union thing and referred to organizing.
She asked him what was going on and further said that they
could discuss this when he came back to the office. She
admits that she was upset at the time. In this connection, as
I have in previous matters, I credit the statement of Witt.
By letter dated September 16, 1977. received by Respon-
dent on September 20, the Union demanded written recog-
nition of Respondent and requested a meeting for the pur-
pose of negotiating a collective-bargaining agreement.
B. Analysis and Conclusions
I. The alleged 8(aX I) violations
The credited testimony of Grillo described above is to the
effect that on Saturday. September 17. Stuckenbrock called
him from Chicago and asked whether the rumor he had
heard of organizing a union was true, which Grillo denied.
Such a question by Stuckenbrock constitutes an illegal in-
terrogation concerning Grillo's union activities, and conse-
quently by such conduct Respondent iolated Section
8(a)( ) of the Act. Additionally. Kushnick interrogated
Witt by telephone on September 19 when she asked him
whether he signed a card.
Stuckenbrock continued in the same conversation to tell
Grillo to get together with whomever it was and tell him to
forget about it. because if the employees went along they
would be fired on the spot. Such a statement, of course.
constituted a threat to employees who may be attempting
to organize a union and further violated Section 8(a)( 1) of
the Act.
2. The alleged 8(a)(3) violations
a. Plrick (rillo
Grillo was the initiator and activist with respect to the
bringing of the Union to the Company. ie made inquiry
and visited the union office alone and obtained cards, after
which he returned to the premises on September 16. met
with Vozzi., and then obtained signed authori;tion cards
from him and two other employees. He also solicitcd W: t
who refused to sign a card. All this was done on 'ptember
16. 1 find that knowledge of Grillo's activity may be in-
ferred and attributed to Kushinck as of tit dt, ba
upon the testimony of Wit as to their conversation near the
parking lot and her own observation of the three employ-
ees. Any circumstances which make it logical to infer that
Respondent knew about the protected activities must be
considered. In a small operation where the supervision has
close contact with the employees and the concerted activit
is carried out in an open manner. an inference is warranted
that the company does obtain knowledge.4
Witt's remark when he and Kushnick observed Grillo,
Vozzi, and Videtto talking together that it looked like Grillo
was forming a union, even though made in jest. apparently
struck home with Kushnick. She immediately replied that if'
that was the case the business would be shut down. It must
be borne in mind that Kushnick, based upon her previous
experience, even though peripheral, with the parent compa-
ny's problems at John F. Kennedy Airport, was attuned to
the possibility and attendant problems of organizational ac-
tivity. In any case, the telephone call by Stuckenbrock to
Grillo on September 17 further reveals that Respondent
was aware of the union activity. Thus, in violation of Sec-
tion 8(a)(l) of the Act. as detailed above. Stuckenbrock in-
terrogated Grillo concerning his involvement and further-
more threatened discharge of employees who would seek to
bring in the Union.
Having found that Grillo had engaged in union activity
of which Respondent was aware, it must he determined
whether he was discharged on late Sunday night or early
Monday morning because of such activity. While Respon-
dent indicates that Grillo's motive in bringing the Union
was suspect because of his having been suspended and
being in deep trouble at the time, it is not Grillo's motiva-
tion that is in issue but rather the movtivation of Respon-
dent in discharging him. Although Grillo had been sus-
4 Long Island Airport Limousine Senic Co(rp. 486 F 2d 2'2 (2d Cir. 19721:
Weise Plou. Welding Co., Inc. 123 NLRB 616 (1959)
759
D)F:(CISIONS OF: NATIONAI. LABOR REI.ATIONS BOARD
pended for an admitted offense which conceivably could
have resulted in an employee's discharge. I find in the cir-
cumstances tha! he was discharged rather for his union ac-
tivity. 'IThis is supported by the telephone conversation with
Stuckenbrock on the preceding day, which has been related
above. It is clear that Stuckenbrock wished to nip this
union organizational campaign before it went any further.
and therefore not only did he interrogate Grillo but also
threatened his discharge as well as that of others who might
be involved. Furthermore, it is curious that Kushnick called
Grillo in the early hours of Monday morning September 19
to inform him that he was terminated. G(rillo's normal
schedule commenced at 3 a.m., so that a call at that early
hour could be expected. But if, as Kushnick and Stucken-
brock testified. Grillo had been suspended indefinitely, then
a telephone call at that hour would not seem necessary. If'
on the other hand, Kushnick called him at that time in
order to stop him from making that early morning run then
her credibility is further suspect, and Grillo's contention
that he had been suspended only until September 19 would
be correct. Actually, during the phone call of September 17
Stuckenbrock told Grillo that he would be able to return to
work if he and the others called off the Union campaign. It
should be further noted that despite the seriousness of Gri-
llo's offense his record was otherwise good. In sum, I find
that while Respondent's suspension of Grillo was clearly
warranted, its discharge of him in the circumstances was
motivated by his attempt to bring in the Union on Septem-
ber 16. By such conduct Respondent violated Section
8(a)(3) of the Act.
b. The discharge of Robert V'ozzi
Vozzi was suspended on September 19 during the con-
frontation of the union representative with Kushnick and
then terminated on September 21. His involvement with the
union activity was described above, and basically he was
Grillo's accomplice on September 16 when he signed a card
and was with Grillo when Videtto and Jerome signed their
authorization cards. Knowledge of Vozzi's activity stems
not only from his presence in the group observed by Kush-
nick on September 16 but also by his accompaniment of
Hohmann at Respondent's office on September 19 when he
was suspended.
Vozzi was suspended because of his lateness on the morn-
ing of September 19 and was terminated, according to
Kushnick, because of his attitude, absences for sickness.
and tardiness. There is no question that Vozzi had a record
of lateness and had indeed been suspended for I week in
January 1977. There is no indication that he was late on
any other occasion since his suspension in January until
September 19. In that interval of time, however, he was out
sick on several occasions. Although Vozzi was absent and
reported sick on September 15, a few days before he was
suspended and then discharged, he was not reprimanded.
nor did Kushnick even speak to him concerning his absence
on that day. Actually, Vozzi received a wage increase in
approximately June 1977. Since that time he had not been
informed that his attitude was poor.
Based upon his record it may be asserted that Vozzi was
not a model employee. Nevertheless, his attendance record
which purports to be the principal reason for his discharge
was long tolerated by Respondent. I find that the timing of
his suspension and discharge. in the midst of' the confronta-
tion of Kushnick by the union agent who was demanding
recognition, leads to the conclusion that he was suspended
and terminated because of his union activities, and that the
reasons asserted by Respondent were pretextual. Further.
Respondent's action toward Vozzi must be considered in
conjunction with the termination of Grillo just hours prior
to Vozzi's suspension and the threats made by Stucken-
brock to Grillo on the preceding Saturday. I find, therefore.
that Respondent violated Section 8(a)(3) by terminating
Vozzi.
3. The alleged 8(a)(5) violation
The complaint alleges that the Union had been desig-
nated on September 16 by a majority of Respondent's em-
ployees. and that on September 19 the Union requested
recognition and demanded that Respondent bargain with it,
which Respondent then unlawfully refused and continues
to refuse to do.'
It has been stipulated that as of September 16 Respon-
dent employed six employees in the appropriate unit. On
that same date authorization cards were obtained for the
Union from four employees. Grillo. Vozzi, Videtto. and Je-
rome, thus designating the Union as representative of a ma-
jority. Moreover, on September 19 it has been found that
Hohmann. vice president of the Union. demanded recogni-
tlion and bargaining of Kushnick at the office of Respon-
dent.
In N.L.R.B. v. Gissel Packing Co.. inc., 395 U.S. 575
(1969), the Supreme Court held that a bargaining order
would be appropriate in cases which are marked by unfair
labor practices which "have the tendency to undermine ma-
jority strength and impede the election processes." There-
after, the Board has stated that where a coercive atmo-
sphere is created by the employer which conventional
remedies may not adequately dissipate so that a fair elec-
tion can be held with reasonable certainty a bargaining or-
der is warranted. Joseph J. Lachniet, d/bla Honda of Has-
lett, 201 NLRB 855, enf'. 490 F.2d 1382 (6th Cir. 1974).
Respondent's unfair labor practices herein were extensive
in both nature and impact. The day following the signing of'
authorization cards Respondent violated Section 8(a)(l) of
the Act by coercively interrogating an employee and threat-
ening discharge of employees who did not foresake the
Union. The day after that Respondent discharged the lead-
ing union adherent, and later during a confrontation with
the representative of the Union who was demanding recog-
nition Respondent suspended another union adherent and
terminated him 2 days later. These terminations of two em-
ployees of a total of six have already been found to have
been discriminatorily motivated. A natural consequence of
those unfair labor practices was to instill fear in the em-
ployees and to dissipate the Union's majority status. A fair
The unit alleged in the complaint and admitted by Respondent, which I
find to be appropriate, is:
All driver employees of the Respondent. emplosed at its Long Island
City location. exclusive of office clerical employees, all other employees.
guards, and all supervisors as defined in Section 2(1 ) of the Act.
760
DUN(CAN AIR COURIER
election cannot, after such conduct, be insured by the use of
traditional remedies, and the authorization cards signed be-
fore the commencement of the unfair labor practices pro-
vide a more reliable test of the employees' desire and better
protect the employees' rights then would an election. Boston
Pet Supply, Inc.. 227 NLRB 1891 (1977).
Accordingly, I find that Respondent embarked on a clear
course of unlawful conduct which destroyed the Union's
majority status and prevented the holding of a fair election
as of September 17 when Respondent committed its initial
violation of Section 8(a)( ) of the Act. However, as the
Union's demand for recognition was not made until Sep-
tember 19 and as all of Respondent's unfair labor practices
will be otherwise individually remedied, I find that Respon-
dent should be required to recognize and bargain, upon
request, with the Union as of September 19. Trading Port.
Inc., 219 NLRB 298 (1975).
IV. THE EFFECT OF ItI. UNFAIR L.ABOR PRA( IIC(S UPON
('OMMI R('E
The activities of Respondent set forth in section 111.
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Patrick Grillo
and Robert Vozzi in violation of Section 8(a)(3) and ( 1) of
the Act, I recommend that Respondent be ordered to offer
them reinstatement and make them whole for any loss of
earnings and other benefits resulting from their discharge
by payment to them of a sum of money equal to the
amounts they normally would have earned as wages and
other benefits from the date of their discharges to the date
on which reinstatement is offered, less net earnings during
that period. The amount of backpay shall be computed in
the manner set forth in F. W Woolworth Compan. 90
NLRB 289 (1950), with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).6
It is further recommended that Respondent be ordered to
recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
above described unit.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
I See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
3. Respondent violated Section 8(a)( l) of the Act bh co-
ercively interrogating employees concerning union activities
and by threatening to discharge employees who failed to
withdraw their support of the Union.
4. Respondent violated Section 8(a)(3) of the Act by dis-
charging Patrick Grillo and Robert Vozzi because of their
union sympathies and activities.
5. All driver employees of Respondent employed at its
Long Island C(ity location. exclusive of office clerical em-
ployees, all other employees, guards. and supervisors as de-
fined in Section 2(1 ) of the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
6. The nion is the exclusive collective-bargaining rep-
resentative of the employees in the above-described unit.
7. B refusing, since September 19. 1977. to recognize
and bargain with the union as the exclusive collective-bar-
gaining representatives of its employees in the appropriate
unit set forth above Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 0(c) of
the Act, I hereby issue the followin recommended:
ORDER'
The Respondent, Duncan Air Courier, Division of Bruce
Duncan Co., Inc., its officers, agents. successors, and as-
signs, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning union
activities.
(b) Threatening to discharge employees should the) re-
fuse to refrain from activities on behalf of Truck Drivers
Local Union No. 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
or any other labor organization.
(c) Discharging or otherwise discriminating against any
employee because of that employee's union sympathies and
activities.
(d) Refusing to recognize and bargain with the above-
named Union as the exclusive collective-bargaining repre-
sentative of its employees in the following unit:
All driver employees, employed by it at its Long Island
City location, exclusive of office clerical employees all
other employees, guards and all supervisors as defined
in Section 2(11) of the Act.
(e) In any other manner interfering with, restraining. or
coercing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
7 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 findings.
conclusions. and recommended Order herein shall. as provided in Sec. 102.48
of the Rules and Regulations. be adopted b) the Board and become It find-
ings, conclusions. and Order. and all objections thereto shall be deemed
waived for all purposes
761
I)tECISIONS ()f: NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Patrick Grillo and Robert Vozzi immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for their loss of earnings in the man-
ner 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 pay-
roll records, social security payment records, timecards.
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
(c) Upon request, recognize and bargain with Truck
Drivers Local Union No. 807, International Brotherhood of
Teamsters. Chauffeurs. Warehousemen and Helpers of
America. as the exclusive collective-bargaining representa-
tive of its employees in the bargaining unit set forth above
with respect to wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed agreement.
(d) Post at its Long Island City. New York, place of busi-
ness copies of the attached notice marked "Appendix."'
Copies of said unit, on forms provided by the Regional
Director for Region 29, after being duly signed by its autho-
rized representative, shall be posted by it immediately upon
receipt thereof; and be maintained by it for 60 consecutive
days therafter. in conspicuous places. including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by it to insure that said notices are
not altered. defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
8 In the event that this Order s enforced b) a Judgment of a United States
court of appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order the National
l.abor Relations Board
762