F S Willey Co., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1170 (N.L.R.B. 1976)

1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. S. Willey Co., Inc. and William Ober . Case 1-CA-
10938
June 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On March 30, 1976, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent , F. S. Willey Co., Inc.,
Laconia , New Hampshire , its officers , agents , succes-
sors , and assigns , shall take the action set forth in the
said recommended Order.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), entd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
The Administrative Law Judge found that Ober credibly testified that
Willey first informed him of the possible closing of Respondent's Cam-
bridge terminal during a conversation in November 1974 However, the
record shows, as does the Administrative Law Judge's earlier narration of
Ober's testimony, that Ober in fact testified that the conversation occurred
in January 1975 In any event, whether the conversation took place in No-
vember or January does not have any effect on the ultimate findings and
conclusions herein
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Pur-
suant to unfair labor practice charges filed on August 18,
1975, by William Ober , an individual , the General Counsel
of the National Labor Relations Board thereupon issued a
complaint against F . S. Willey Co., Inc., herein called the
Respondent , alleging that Respondent threatened one of
its employees with the close of one of its business opera-
tions so that the employee 's mechanical services would not
be needed because he was a member of the Union; and
that the Respondent thereafter closed one of its business
operations and discharged the employee for remaining a
member of the union in violation of Section 8(a)(1) and (3)
of the Act.
On October 7, 1975, the Respondent filed an answer
which , in pertinent part , denied the allegations as set forth
in the complaint.
The hearing in the above matter was held before me at
Boston , Massachusetts , on January 12, 1976. Counsel for
the Respondents elected not to submit a brief in this pro-
ceeding but a brief has been received from counsel for the
General Counsel , which has been carefully considered.'
Upon the entire record in this case and from my obser-
vations of the witness , I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the laws of the State of New Hampshire, where it
maintains its principal office and place of business in the
city of Laconia. The Respondent is now and continuously
has been engaged in the interstate transportation of general
commodities (freight). During the past calendar year, a
representative period, Respondent, in the course and con-
duct of its business operations caused, and continually
causes at all times material herein, large quantities of gen-
eral commodities used by it in the operation of its transpor-
tation business, to be transported in interstate commerce
from and through various States of the United States other
than the State of New Hampshire. From such operations
the Respondent's gross revenue exceeds $50,000. More-
over, Respondent annually purchases goods valued in ex-
cess of $50,000 directly from States other than the State of
New Hampshire.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and I find that
Lodge 1898, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein referred to as the
machinists , is a labor organization within the meaning of
Section 2(5) of the Act.
1 After the proceeding herein was closed, counsel for Respondent decided
to submit a brief which has been received and carefully considered
224 NLRB No. 151
F S WILLEY CO
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent, F S Willey Co, Inc, is an interstate motor
common carrier engaged in interstate transportation of
general freight At the end of 1974 Respondent was operat-
ing three terminals, one in Manchester, New Hampshire,
one in Laconia, New Hampshire, and one in Cambridge,
Massachusetts The truckdrivers at Respondent's New
Hampshire terminals (Manchester and Lacoma) are repre-
sented by the Teamsters Union, Teamsters Local 633 The
four mechanics at the Laconia terminal were not repre-
sented by any labor organization and they performed all of
the mechanical work for both Laconia and Manchester ter-
minals The truckdrivers at the Cambridge terminal were
represented by the Teamsters, but by Boston Local 25 The
Cambridge terminal employed only one mechanic who was
represented by the Machinists Union, International Asso-
ciation of Machinists, Local 1898
The Respondent contends that it has been losing money
for the last several years as a result of the general state of
the national economy, that in November 1974, the eco-
nomic situation forced it to decide to close its Cambridge
terminal, and pursuant to its bargaining contract, Respon-
dent was required to give a 30-day notice in writing of such
closing to the Teamsters, but it did not so notify the Ma
chinists Union because it was not under any bargaining
contract obligation to do so The Teamsters made arrange-
ments with the Respondent for the transfer of certain em
ployees of the New Hampshire terminals for the continued
operation of the Cambridge terminal for a longer period of
operation More specifically, such arrangement allowed the
Respondent to continue operation of the Cambridge terms
nal until it did in fact close said terminal on June 30, 1975
However, prior to actually closing the Cambridge terminal,
Respondent did send a written notice of its closing to the
Teamsters and to the Machinist's Unions 2
B Respondent's Decision To Close its Cambridge Terminal
William Ober was employed as a mechanic at the
Respondent's Cambridge terminal for 2-1/2 years where he
repaired trucks and attended the terminal Three quarters
of his work was mechanical in nature and his salary was
$6 86 per hour Ober was a member of the Aerospace
Workers Union 1898 for more than 2 years Ober testified
that during the latter part of January 1975, he saw a notice
on the bulletin board at the Cambridge terminal addressed
to Local 25, concerning the closing of the Cambridge ter-
minal He said he had heard rumors about the closing of
that terminal for a number of years but no one paid much
attention to them He said he also saw a notice (Resp Exh
1) to the truckdrivers on the Cambridge terminal bulletin
board in December 1974, the substance of which read as
follows
2 The facts set forth above are undisputed and are not in conflict in the
record
1171
As per the attached agreement between Local No 25
and Local No 633, the change in operations will be-
come effective on or after January 1, 1975 Employees
desiring to redomicile to Manchester, New Hamp
shire, for regular work, please sign below Those desir-
ing to remain at Cambridge terminal please sign be
low (Lines were provided below for truckdrivers to
sign )
Ober, who was a mechanic, did not sign the above letter
He thereafter identified Respondent's Exhibit 2, his
Union's contract, which he believed covered him to the
extent that it gave him the right to follow work from Cam-
bridge to the Laconia or Manchester terminals He first
learned about the plans for the Cambridge terminal to
close around January 1975, when he was called into the
office by Mr Willey, who told him Respondent was think-
ing about moving and he thought that Ober would do a
good job for the Respondent up in Manchester, with a little
supervision from Ken Parks, the dispatcher
The record further shows that in his affidavit submitted
to the National Labor Relations Board on August 21, 1975,
William Ober told the Board agent that Mr Frank Willey
called him into his office in January 1975 and told him the
Company was closing the Cambridge terminal, and if he
wanted a job in Machester he would give Ober $5 50 an
hour with company benefits if he (Ober) got out of the
Union and wrote a letter to the Union advising it of such
fact Ober said he told Mr Willey he would think about it,
that Mr Willey further stated that he did not want a union
in Manchester and he wasn't having them At that time,
Ober said there were no mechanics assigned to the Man-
chester terminal but that the truckdrivers there were repre-
sented by Local 633 of the Teamsters At the time of Mr
Willey's job offer to work in Manchester, Ober said he was
earning $6 86 an hour plus union benefits
At the hearing Ober testified that the date of the above
described conversation with Mr Willey regarding his working
in Manchester if he resigned from the Union, took place in
May 1975, instead of January 1975, as he stated in his affida-
vit of August 21, 1975 Ober further testified that his reply
to Mr Willey's offer was "no, I says, after 25 years I may
stay, but I am not going down hill," and that Mr Willey
said, "Well the best I can do is $5 90" and he said he had
the job if he wrote a letter to his Union and resigned from
it Ober said he said he would think it over
On or about May 19 Ober testified that the notice (G C
Exh 4) was posted on the bulletin board in the Cambridge
plant The substance of that notice dated May 19, 1975,
read as follows
Please be advised that it is the intention of the F S
Willey Company, Inc, to close our Cambridge termi-
nal located at 10 Spring Street, Cambridge, Massachu-
setts In accordance with the provisions of the New
England Freight Agreement, this letter will serve as
our 30-day notice to close the terminal approximately
June 30, 1975
The work presently performed by members of Local
No 25 will be transferred to our Manchester, New
Hampshire facility
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We would appreciate arranging a meeting with both
locals as soon as possible to discuss the transfer of
Cambridge personnel and contractural issues
We will look forward to your immediate reply
Very truly yours,
F S WILLEY COMPANY, INC,
Around the first of June 1975, Ober said he asked Mr
Willey if he had a job at the Manchester terminal and Mr
Willey said he did not know, he would let him know in a
couple of weeks, but Mr Willey never did advise him
Ober further testified that on or about June 1, 1975, a for-
mer employee, Roy Pendelton, was in the garage and Ober
told him about his discussions with Mr Willey regarding
his willingness to work at the Manchester terminal He
then asked Pendelton to see what Union Local 25 thought
about it The next morning, Ober said he received a tele-
phone call from Mr Salinas of Union Local 25, who ad-
vised him that he had previously called Mr Willey and
then proceeded to ask him what was this he had heard
about Ober resigning from the Union (as Pendelton had
obviously told him) Ober said he advised Mr Salinas that
it was all talk and not to worry He said he did not tell the
union representative Respondent was closing the Cam-
bridge terminal When Ober was asked why he had not
filed a grievance against the Respondent about the termi-
nation of his job, he said when he went to discuss the mat-
ter with his business agent, his agent told him it appeared
that Respondent was trying to run away from the Union
and he responded that he thought he was paying union
dues for that purpose
Ober further testified that Respondent gave him a letter
(G C Exh 5) dated May 30, 1975 and addressed to Lodge
No 1898 of the Machinist's Union which read as follows
Please be advised that it is the intention of the F S
Willey Company, Inc, to close our Cambridge termi-
nal located at 10 Spring Street, Cambridge, Massachu-
setts In accordance with agreement provisions, this
letter will serve as official notice that the terminal will
close approximately July 1, 1975
The job presently maintained by members of Local
Lodge No 1898 will be terminated and there will be
no additional work available as a result of closing this
terminal
Your cooperation has been appreciated in the past
and we thank you for your attention to this notifica-
tion
Very truly yours,
F S WILLEY COMPANY, INC,
Ober said he had not seen the above-described letter on
the Cambridge terminal bulletin board but, rather, this was
the first time he had seen the letter He said on or about
June 25 he went to see Mr Willey at which time Mr Willey
told him the Respondent was not having any union in
Manchester Ober said he told Mr Willey that he had
heard that Respondent was planning to put a nonunion
mechanic from Laconia in the Manchester terminal, and
Mr Willey said, "Right", that he (Ober) said he thought it
was unfair to him that he was being discriminated against,
that Mr Willey said, "Yes, but I will deny it", that he
(Ober) said, "You leave me nothing but to turn you in to
the NLRB' and Mr Willey said, "Oh, I've already talked
to my lawyer and my lawyer said that I would have a 99
percent chance of winning," and that if the NLRB makes
Respondent rehire Ober, he (Mr Willey) would sell the
trucks and thereafter lease trucks, and, in that way, he
would not need a mechanic Ober said when he last went to
the Manchester terminal in June 1975, there were two me-
chanics employed there Ober was terminated from
Respondent's employ on July 2, 1975 At that time, he said
to his knoweldge, the mechanics at Laconia were not repre-
sented by a labor organization although he (Ober) was al-
ways represented by Local 1898 of the Machinists He
thought he should have been given preference to the job at
Manchester because he believed his contract provided for
his transfer to Laconia and because he had more longevity
with the Respondent than the mechanic who was finally
transferred to Manchester He did not file a grievance with
the Respondent alleging a violation of his union contract
Ober testified that on July 2, 1975, he went to the Man
chester terminal, punched the timeclock, and was given a
letter (G C Exh 3) dated July 2, 1975, the essence of which
read as follows
Dear Mr Ober,
Please be advised that your employment with the F S
Willey Company , Inc, has been terminated as of this
date due to the closing of the Cambridge terminal
Enclosed please find final checks for payroll earnings
on 6/30/75, 7/1/75, 7/4/75, holiday pay, and vaca-
tion due for 1974-1975
Respectfully,
F S WILLEY COMPANY, INC,
Frank M Willey, Vice President
Copies of the above letter were sent to Lodge No 1898
IAM and the Employees Group of Motor Freight Carriers
Respondent Employer's Testimonial Version
Mr Frank Willey, vice president of Respondent during
the period in question, testified that according to its operat-
ing ratio in late 1974 and early 1975, the operation of the
Cambridge terminal was costing Respondent $1 38 to
make $1, which compelled Respondent to consider closing,
and later to close, the Cambridge terminal for economic
reasons
Mr Willey further testified that on August 11, 1975, the
unrepresented mechanics at Respondents Laconia termi-
nal, without an NLRB election and by a show of cards,
authorized representation by a union, which the Respon-
dent voluntarily recognized and with which it signed a col-
lective-bargaining contract The terms of the machinists
union's contract were more favorable (working conditions,
wages, and overtime) to his operation than the terms of the
Teamsters bargaining contract He said Respondent actu
ally decided to close the Cambridge terminal on October
31, 1974 and had posted a notice to that effect on the
bulletin board at the Cambridge plant on or about Novem-
F S WILLEY CO 1173
ber 3, 1974 The notice, he testified, was addressed to
Union Local 25, that shortly thereafter William Ober came
into his office on November 4, 1974, in Cambridge and the
following conversation ensued
Mr Ober approached me and asked what the possibil-
ities of having a job in Manchester were, whereby he
had seen the notice to that effect, that we were closing
the terminal He said, he at that time told me that he
didn't want anything to do with the Union This was his
statement in its entirety
I did not make any comment to that effect, and I told
him-he told me that he lived so close by there to the
Manchester terminal that he would like to work for us
in Manchester, New Hampshire And he then told me,
why don't you think it over and let me know what I
could go to work for and that was the whole substance
of the conversation
Mr Willey further testified that Ober came to his office
in Cambridge on November 15, 1974, when they held the
following conversation
A Yes Mr Ober approached me and asked if we
could discuss his status with the Company And I said,
of course we could And we stepped into my office
and he said, what have you decided, what can I go
work for And I said, well, Bill, I had not made you
any promises what you could go to work for We have
not made up our minds whether or not we are going to
employ a mechanic at our Manchester, New Hamp-
shire, facility on moving to Manchester But I said,
suppose you went to work for us at $5 50 an hour,
which is a representative classmen's mechanics wage
at the Laconia terminal There are no-I told him that
we-the working conditions may be-if we did have a
mechanic working in Manchester that he may be
working at the general freight terminal in the pit area,
what is referred to as the pit area where the trucks are
backed in at night working nights And he said, what
do you mean, you are going to be moving into the new
Hemingway terminal and there is a big garage there
At this time we were negotiating to take over a
larger facility commonly referred to as the Heming-
way property owned by Hemingway Transport, which
I was not -1 told him I was not going to discuss that,
I was not able to discuss that anymore But probably
if we did choose to employ a mechanic in Manchester,
working at our present facility nights in the pit area
And he said, well I am not working at night and I
want $6 00 And I reiterated that I had not made you
any promises further, I told him at this time on No-
vember 15th that the way I interpreted the contract
there is-that it makes no difference what he wanted
If he wanted to come to work for us as a non-union unit
employee that 1898 would still have jurisdiction on him,
and as I say it wouldn't make no difference whether he
wanted to quit, resign or whatever manner you want to
refer to it as, that Local 1898 may well have jurisdiction
on him at Manchester New Hampshire And I further
told him-reminded him that a number of employees
in other departments were going to be terminated as a
result of us closing the terminal, and that the likeli-
hood was there that he would be one of those affected
employees, and that kind of a conversation
Although the decision to close the Cambridge terminal
was made in October 1974, Mr Willey said Respondent
met with Local 25 and Local 633 of the Teamsters on De-
cember 6, 1974, when they worked out a change of opera-
tion agreement (Resp Exhs 2 and 3), which along with the
unsuccessful negotiations of the Respondent with the
Hemingway property it was seeking to obtain, the Cam-
bridge terminal was not closed at the end of December
1974 Nevertheless, Respondent then posted a notice
(Resp Exh 1) pursuant to the change of operation agree-
ment (Resp Exhs 2 and 3, herembefore described) on the
Cambridge terminal bulletin board December 12, 1974
With respect to Ober's testimony regarding
Respondent's job offer, Mr Willey testified that on or
about June 14, 1975, Ober approached him and the follow-
ing conversation was held
Well, he said, what have you decided, what are you
going to give me for an hourly wage9 And I said, Bill
we made no commitments to you and no guarantees
that you are going to have a job I told him, I remind-
ed him at this time that the Laconia mechanics were
performing work done-mechanical work done over
at the Manchester terminal The Laconia mechanics
were performing the mechanical work needed at the
Manchester ternunal, and that we were going to con
tmue this And I asked him, didn't you understand the
letter I gave you a couple of weeks back9 And he said,
well I thought that that was a way in which you were
trying to-he made reference-I don't remember his
exact words, but he made reference to saying I
thought that was a way in which you were going to
cover up so you could rehire me in New Hampshire,
so I could get out of the Union I don't want any
god-damned union he said I asked him, have you
been in touch with Mr Salinas, the fact that Mr Sali
nas called me approximately June 20th-called me-
excuse me strike that
I again told him that I reminded him of the fact that
this was a consolidation movement, it was a matter of
economy and he unfortunately was going to be an af-
fected employee and was going to lose his employ
ment with the F S Willey Company And he then
became more boisterous and he said, you are going to
give me a god-damned job or else And I said, what do
you mean by that, Bill' and he said, I will have Hook-
er chasing trucks with flat tires all up and down Route
93 And on that he proceeded out of the office and
slammed the door
Q Who is Mr Hooker9
A He was making reference to Leonard Hooker,
maintenance foreman of the F S Willey Company
Mr Willey also testified that on or about June 27, 1975,
Ober approached him in the Cambridge office and they
held the following conversation
A He came in to just repeat himself, the fact that
he wanted to work for us in Manchester, New Hamp-
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shire, and he lived in Milford, New Hampshire not too
many miles away And he felt that he was being dis-
criminated against because we were hiring a spare, we
were hiring a man off the street to work in Manches-
ter, New Hampshire And that he would take it to the
Union
I asked him, have you been in contact with Mr
Salinas and are you aware that Salinas and I talked
approximately on June 20th, 1975, and that was in
respect to your status with the company9 I don't be-
lieve he made any-I don't believe he indicated he
had spoken with Salinas or made a commitment that
he made any filings for any grievance filings
Mr Willey said he explained to Ober that this consolida-
tion by the Respondent was a new operation for the Re-
spondent and it would have to see what develops, and that
he advised Ober to check with him at the Manchester ter-
minal in about 2 weeks Ober came to the Manchester ter-
minal in July and entered the dispatch office of the freight
platform and punched the timeclock He asked Ober what
actually warranted his action and Ober said the Labor
Board sent him there to punch in
In terminating or transrerring its employees, Respondent
(Mr Willey) testified that its Cambridge employees were
terminated in 1974 and those truckdrivers who were kept
were dovetailed to New Hampshire on June 30, 1975, that
the terminated employees received letters like Mr Ober's
(G C Exh 3) except they did not contain checks for earn-
ings and vacation and holiday monies as Mr Ober's be-
cause no money was due them
Mr Willey denied ever suggesting, asking, or advising Ober
to resign his membership in the Union or offering him employ
ment in New Hampshire He likewise denied telling Ober that
if Respondent were ever ordered by the National Labor Rela
tions Board to reinstate Ober, Respondent would sell its
trucks rather than reinstate Ober as a mechanic With refer-
ence to Ober's testimony about a mechanic who was trans-
ferred from Laconia to the Manchester terminal, Mr Wil-
ley testified as follows
A When Ober asked me this on June 12 or 14th, he
was saying he had heard through the grapevine that
we were going to hire a spare in Manchester to take
his job, or what he considered his job because of the
closing of the Cambridge terminal So I told him that
was untrue, Bill, and I said that Robert Rowe, Jr, we
had put the job up and we decided or we had made
the decision myself and the head of the maintenance
department and president of the Company, we made a
decision to offer the job to one mechanic, because of
this consolidation effort One of the mechanics in the
Laconia terminal, one of the regular employees
Q To go to Manchester9
A Robert Rowe, Jr, and we did make it available
to him, he took the opportunity And he went to work
in Manchester, and that took place the last week in
June that he went to work for us in Manchester
Mr Willey testified that the Respondent ultimately de-
cided to close the Cambridge terminal on or about May 17,
1975, and that during the third week in June 1975, it decid-
ed it needed a mechanic at the Manchester terminal, and
thereupon decided to transfer mechanic Robert Rowe, Jr,
to the Manchester terminal Robert Rowe, Jr, was first
employed part time by the Respondent in July 1973 and
was thereafter taken on as a full-time employee at Laconia
in March 1974 (Resp Exhs 4 and 5) Mr Willey admitted
that Respondent had no problem with Ober's work perfor-
mance and it had no reason to doubt that he could not
perform the work at the Manchester terminal but that it
nevertheless, did not consider Ober for the mechanics posi-
tion at the Manchester terminal, and that it selected Rob-
ert Rowe, Jr, for that position in spite of the fact that Ober
had more seniority in terms of working tenure with the
Respondent than any of the other mechanics, except
Hooker
In explaining why the Respondent did not select William
Ober for the Manchester mechanic's position, Mr Willey
said mechanic Bruce Hooker was in the Respondent's em-
ploy in January 1975, when he was granted approved leave
of absence (as the Respondent has permitted its employees
in the past) and returned to Respondent's employ on Sep-
tember 2, 1975 In December 1974 Respondent had four
mechanics at the Laconia terminal and one mechanic at its
Cambridge terminal When mechanic Bruce Hooker went
on leave of absence in January 1975, Respondent hired two
mechanics at Laconia, bringing its total number of me-
chanics to five The Laconia mechanics have always per-
formed the mechanical work for the Manchester terminal
until Robert Rowe, Jr, was transferred there in June 1975
Respondent still has four or five mechanics at Laconia
With respect to Respondent's reasons for transferring
Rowe to the Manchester terminal in preference to William
Ober, Vice President Willey continued to testify as follows
Q (By Mr Zaiger) Now, Mr Rowe was sent to the
Manchester terminal around July 1st, is that correct?
A The last week in June
Q And thereafter-would it be your testimony that
if there was work available Mr Ober would have been
transferred to Manchester at that point in time9
A Would you repeat the question9
Q If work was available in Manchester, would Mr
Ober have been given the opportunity to go to work
there9
MR KINGSTON He has just been through that, he
said Mr Rowe got that work
JUDGE GADSDEN That is not the question
Q (By Mr Zaiger) If work had been available,
would Mr Ober have also been sent there if he was
willing to go9
A If the company was in accordance with the con-
tract, 1898, yes Ober would have been offered that
work if work had been available
Q I don't understand your reference to the con-
tract, sir Would you explain that?
A The fact is that we-our position, we took our
position and we did it according to the contractual
language of the Machinists Union Local 1898 bargain-
ing agreement And we had a position and the position
was not challenged Now if I am to answer your ques
tion, if there had been enough work that this consoli-
dation movement necessitated another mechanic, and
F S WILLEY CO 1175
if the Manchester terminal was performing the work
on their own and not the continuance of the Laconia
terminal performing 90 percent of the Manchester
work, which it had been done historically, then Mr
Ober would have been considered to give him the op-
portunity to transfer to Manchester, New Hampshire
in accordance with the contract
Q You had four mechanics in July after Mr Ober
was let go, correct? Working in Laconia and Manches
ter9
A Right
JUDGE GADSDEN In Laconia9
Q (By Mr Zaiger) There were three in Laconia
and one in Manchester in early July 19759
A Correct
Q If you needed a fifth, would you have given the
job to Mr Ober or would you have hired somebody
off the street9
A We did not need a fifth We wouldn't need a
fifth at Manchester, New Hampshire We had-that
facility was not adequate to do so
Q Well, there came a time when another mechanic
was added to the roles at Manchester, isn't that true?
A That's correct We transferred some more equip-
ment down from Manchester and another regular me-
chanic that was working in Laconia was transferred
down there
Q And who was that9
A Fred Schmidt
JUDGE GADSDEN So what are you saying, you have
two mechanics at Manchester now9
THE WITNESS Presently yes we do, sir
JUDGE GADSDEN When was the second one sent?
THE WITNESS The last week in August after we be
came a bargaining unit with Local 633 Teamsters and
this was partly
Q (By Mr Zaiger) Mr Willey, I will restate the
question Do you have any reason to believe Mr Ober
wasn't qualified to do work in Manchester?
A No, I didn't
Q Tell me again What does that contract have to
do with whether Mr Ober could work in Manchester
or couldn t work in Manchester?
A It doesn't have any bearing on Mr Ober as an
individual working for us in Manchester or not It has
a bearing on whether or not the Machinists Local 1898
had jurisdiction at Manchester, New Hampshire
Q When the decision was made to close the opera
tions, sir did you consider that problem at that time,
which would have been approximately the middle of May
of 1975P
A I didn't consider it a problem
Q That isn't what I asked you
Did you consider that issue, that question
A As I gave in testimony I considered it yes I gave it
consideration in May also of 1975
Q Why?
A Why, because if we hired a mechanic in Man-
chester, New Hampshire, we wanted to be within our
contractual boundaries according to 1898 and the
question was, was not whether or not Ober would,
whether the Machinists Union would follow Ober, but
whether a Manchester employee at all Okay9 Because
Teamster employees were consolidated up to Man-
chester
Mr Willey admitted that he considered whether a Man-
chester mechanic would come under the jurisdiction of
Teamsters Local 1898 or under the Teamsters employees
who were consolidated in the Manchester-Laconia opera-
tion Under persistent cross-examination, Mr Willey ad-
mitted that none of the terminated Cambridge employees
were members of the Machinist Union
Leonard B Hooker, fleet superintendent and working
foreman, verified Respondent's loose leave-of-absence pol-
icy which was extended to employee Bruce Hooker and
other employees
Analysis and Conclusions
The evidence of record is free from conflict and clearly
establishes that Respondent's decision to close its Cam-
bridge, Massachusetts, terminal was motivated solely by
economic factors However, the evidence presents two
questions, the answers for which are crucial to a determina-
tion in this proceeding The testimony referable to both
questions is highly conflicting and a resolution of the same
is required prior to any consideration of the ultimate deter-
minations to be made herein
The first issue involves the credibility of the Charging
Party, William Ober, and Respondent's vice president,
Frank S Willey, with respect to the correct date of occur-
rence of a conversation of conflicting versions, between
Ober and Respondent (Vice President Willey) According
to Ober, whose affidavit of August 21, 1975, first shows
that the conversation occurred in January 1975, now testi-
fies that the conversation occurred in May 1975, and that
the January 1975 date was apparently a mistake in commu-
nication or recordation between himself and the Board
agent
The second issue involves the credibility of Ober and
Respondent's Vice President Willey, as to whether Vice
President Willey offered Ober a job at Respondent's Man-
chester terminal provided Ober resigned from the union
(1898 of the IAM), and thereafter stated that he did not
want and was not going to have any unions in Manchester
A resolution of the above-described issues calls for an
objective determination of the veracity of the two witnesses
whose testimony is highly conflicting on the crucial ques-
tions While it is difficult in most instances to resolve such
vex questions of fact to which the parties alone bear wit-
ness, I am nevertheless compelled to consider the relation
ship of the parties, one to the other, the readily responsive,
nonselective, nonexaggeratmg, consistent and straightfor-
ward manner in which they testified, the reasonableness of
efforts made by each to bring essential witnesses and ap-
propriate documentary evidence before the Court, as well
as how such testimony or other evidence relates to the logi-
cal consistency of all of the evidence of record and the
sequence of events as they transpired
With respect to counsel for the Respondent's reference
to Ober's initialing the date of "January 1975" in his affi-
davit (G C Exh 6), it is observed that the only correction
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the area of that date is the insertion on the line below the
date, the word "Company " to which the initials are proba-
bly referable, since there does not appear to be any other
reason why Ober's initials would be placed over that date
which does not appear to have been corrected Since it was
Ober, who during his direct examination, cited the date of
"January 1975" in his affidavit as error, there would ap-
pear to be some credence to his testimony However, in
view of the subsequent testimony by Ober and Vice Presi
dent Willey, and the somewhat strange chain of direct and
circumstantial evidence of Respondent's conduct with re-
spect to Ober's termination, I defer ultimate determination
as to whether Ober's date correction is truthful until all of
the evidence has been carefully examined and evaluated
Assuming that January 1975 is the correct date of the dis-
puted conversation, I do not agree with counsel for Re-
spondent that the complaint herein is barred by Section
10(b) of the Act, because Ober was not discharged (termi-
nated) in January but rather in June 1975, and the proprie-
ty of his termination makes either date (January 1975 or
May 1975) inconsequential
Although Respondent (Vice President Willey) denied of-
fering Ober a job, or even having had a discussion about a
job with Ober in January or May 1975, he does acknowl-
edge having had a discussion about a job with Ober on
November 4 or 14, 1974, and again in June 1975 His ver-
sion describes Ober as having come to his office after the
notice of the closing of the Cambridge terminal was posted
in November 1974, and asking him for a job in Manches-
ter, that Ober voluntarily told him he (Ober) did not want
anything to do with the union, and that he (Mr Willey) did
not make any commitment to Ober When Ober asked es-
sentially the same question on November 14, 1974, he said
he told Ober he did not know about a job but should he
(Ober) have an opportunity to work at Manchester, it
would be at nights for $5 50 an hour, and Ober said not at
night and not for less than $6 per hour Mr Willey said
$5 90 was the best he could do and Ob°r said he would
think about it He then told Ober it did not matter what he
(Ober) wanted, he could resign from the union if he
wished, but Local 1898 of the IAM would still have juris-
diction over him even if he did get an opportunity to work
in Manchester
While I credit Vice President Willey's testimony with
reference to night work at $5 50 or $5 90 an hour, whether
or not said discussion occurred in November 1974, as he
testified, or in January or May 1975, as Ober testified, I
nevertheless do not credit Vice President Willey's testimo-
ny to the effect that Ober, out of the clear blue sky, advised
him at that time that he did not want anything to do with
the union If nothing in fact had been said about the union
(IAM) by Respondent, it is inconceivable that Ober volun-
tarily made such an adverse statement about his own
union On the contrary I credit Ober s version that Respon-
dent (Mr Willey) first mentioned in November 1974, the
possibility of Ober working at Manchester and thereafter,
in January and/or in May 1975, offered Ober a job in
Manchester provided Ober resigned from the Union be-
cause Respondent did not want unions in Manchester
Ober's testimonial version is further supported and Vice
President Willey's version is further discredited, when the
following chain of probative direct and circumstantial fac-
tors are considered along with the total evidence of record
I Prior to its closing on June 30, 1975, Respondent had
no mechanics stationed at its Cambridge terminal
2 Prior to closing the Cambridge terminal on June 30,
1975, Respondent's mechanics at its Laconia terminal were
not represented by a union
3 Prior to closing the Cambridge terminal on June 30,
1975, all of Respondent's mechanics were stationed at its
Laconia terminal, except William Ober
4 Respondent's truckdrivers at its Cambridge terminal
were represented by Local 25 of the Teamsters, with which
Respondent had a collective-bargaining agreement
5 Respondent's truckdrivers at its Laconia and/or
Manchester, New Hampshire, terminals were represented
by the Teamsters, Local 633
6 Ober, who was stationed at the Cambridge terminal
was the only mechanic represented by a union and the only
employee at the Cambridge terminal represented by Lodge
1898 of the IAM, with which Respondent had a collective-
bargaining agreement
7 After Respondent's first notice of the closing of the
Cambridge terminal in November 1974, some of the Cam-
bridge terminal truckdrivers were terminated and some
were transferred to Laconia and Manchester terminals in
January, while others were so transferred in June 1975
8 Since the truckdrivers transferred from the Cam-
bridge terminal to the New Hampshire terminals were al-
ready members of the Teamsters, Local 25 (Boston), all
they had to do was to become members of Local 633 of the
Teamsters which was already in the New Hampshire termi-
nals, and there would be no contract obligation for Re
spondent to carry out with Local 25
9 If Respondent had to transfer Ober to Manchester, it
still would have been obligated to its collective-bargaining
agreement with IAM 1898, unless Ober had resigned there
from
10 Respondent finally decided on May 19, 1975, to
close its Cambridge terminal on June 30, 1975, of which
fact it notified Local 25 of the Teamsters, but did not so
notify 1898 of the IAM
11 On or about May 27, 1975, the controversial conver-
sation between Ober and Vice President Willey occurred
when Mr Willey offered Ober a job at Manchester first,
for $5 50 per hour and finally for $5 90 per hour, provided
Ober resigned from IAM 1898 and notified said Union to
that effect in writing
12 Ober immediately had his union representative in
formed of the Respondent's offer, and the union represen-
tative thereafter told Ober he had spoken with Respondent
on that same day
13 In a letter dated May 30, 1975, Respondent (Mr
Willey) formally notified IAM 1898 of its decision to close
its Cambridge terminal on June 30, 1975, and that William
Ober, its only member, would be terminated
14 Ober did not resign from Lodge 1898 (IAM) even
though Respondent retained him in its employ until June 2,
1975, when he was terminated by Respondent
15 On or about June 26, 1975, as the Cambridge termi-
nal closing date approached, Ober went to Vice President
Willey and asked him about the validity of a tumor that
F S WILLEY CO 1177
Respondent was going to transfer a mechanic from its La
conia terminal to its Manchester terminal , and Mr Willey
confirmed the rumor
16 On or about June 26, 1975, Ober then accused Vice
President Willey of discriminating against him and Mr
Willey said, "Yes, but I'll deny it" and when Ober said he
would then have to take the matter to the National Labor
Relations Board, Mr Willey responded to the effect that
he had already spoken to his lawyer who had informed him
that he had a 99-percent chance of winning, and that if the
Board made him rehire Ober, he (Respondent) would sell
his trucks and lease them so that Respondent would elimi-
nate the need for mechanics 3
17 During the third week of June 1975 Respondent de-
cided it needed a mechanic at its Manchester terminal and
thereupon transferred mechanic Robert Rowe, Jr , from its
Laconia terminal to its Manchester terminal
18 Subsequently, Respondent transferred a second me-
chanic, Fred Schmidt, from the Laconia to the Manchester
terminal
19 William Ober not only had a longer working tenure
with Respondent than Robert Rowe, Jr, and Fred
Schmidt, but his working tenure with Respondent was lon-
ger than all, except one of the five or six mechanics in
Respondent's employ
20 Although Respondent admitted it had no complaints
or questions about Ober's qualifications or past work per-
formance to do the work at the Manchester terminal, Re-
spondent nevertheless did not consider Ober for the posi-
tion
21 In explaining why it did not select Ober for the
Manchester job, Respondent (Mr Willey) said it had one
employee (Bruce Hooker) on leave of absence since Janu-
ary 1975, whom its policy pledged to employ if a vacancy
were available when he returned Hooker did not return
until September 1975, and Respondent transferred Rowe
to Manchester in June 1975 and, thereafter, transferred
Fred Schmidt to the Manchester terminal in July or August
1975
22 In further explaining why Respondent did not select
Ober for the Manchester job, Mr Willey, testifying in a
very selective, evasive, and unconvincing manner, said he
considered the fact that the collective-bargaining contract
with 1898 on Ober would have followed Ober to Manches-
ter, if Ober had been given the job in Manchester
Considering all of the foregoing credible evidence, I am
persuaded that the following conclusions are inevitable
That in May 1975 Respondent conditioned William Ober's
continued employment with Respondent in New Hamp-
shire on his resignation from the Union, Lodge 1898, that
Ober did not resign from the Union and Respondent ter-
minated his employment on July 2, 1975, after closing the
3 I credit William Ober s testimony of his June 1975 conversation with
Vice President Willey not only because I was persuaded by Ober s demean
or that he was telling the truth but also because I was equally persuaded by
the demeanor of Vice President Willey that he was not candid and truthful
in this regard I was further persuaded that Ober s version of the conversa
tion was correct by the logical consistency of all of the evidence of record
that Mr Willey was trying to avoid a continued contractual obligation with
Local 1898 in Manchester even if it meant terminating Ober from
Respondent s employ as he eventually did
Cambridge terminal on June 30, 1975, that on or about
June 26, 1975, Respondent did tell Ober that before it com-
plied with a Board order to rehire him it would sell its
trucks, thereafter lease trucks, and thereby eliminate its
need for mechanics like Ober, and that Respondent's ter-
mination of Ober's employment was primarily motivated,
not by its legal economic justification for closing the Cam-
bridge terminal, but rather, by its evident and well-ex-
pressed desire to free its Manchester, New Hampshire, ter-
minal from continued contractual obligation with Lodge
1898 of the IAM, since it was already contractually bound
to deal with Local 633 of the Teamsters in its Laconia,
New Hampshire, terminal
It is particularly observed that Respondent first indi-
cated his intellectual consideration of utilizing a mechanic
at its Manchester terminal when Vice President Willey
mentioned it to Ober in November 1974 Since Mr Willey
initiated or entertained the suggestion at that time, it is
clear from the evidence that he was thinking of utilizing
Ober's mechanical skills in Manchester When the subject
was discussed by Ober and Vice President Willey again in
May, or even if it were in January 1975, it is clear that
Respondent was still thinking about using Ober's services
in Manchester In fact Ober was so much under
Respondent's consideration for the job that Vice President
Willey offered Ober the job at $5 50 and ultimately $5 90
per hour, provided Ober resigned from the union (1898
IAM) and notify the union to that effect
It is interesting that Ober did not resign from the union
(1898) and Respondent kept him in its employ until it
closed the Cambridge terminal When Respondent ulti-
mately decided on May 17, 1975, to close the Cambridge
terminal on June 30, 1975, it notified Local 633 of the clos
ing but it did not notify Lodge 1898 of the closing and
termination of Ober, until about May 30, 1975 However,
even then, Respondent neglected to formally notify Ober
that he would be terminated at that time Perhaps Respon-
dent was hoping or awaiting for Ober to announce that he
had resigned from the Union When such an announce-
ment did not come forth from Ober, Respondent formally
terminated Ober on July 2, 1975
Ober's discussion with Vice President Willey on June 26
only reinforces the prior evidence of Respondent's motive
for not transferring Ober to Manchester, and the truth of
that conversation is further reinforced by the fact that Re-
spondent did in fact assign one mechanic to the Manches-
ter terminal only 3 weeks after the closing of the Cam-
bridge terminal, and thereafter assigned a second mechanic
there in August 1975 The already transparent motive for
Respondent's conduct becomes even clearer when it is not-
ed that while Respondent acknowledged that it ordinarily
takes into consideration an employee's seniority or work-
ing tenure with Respondent, in determining which employ
ees it shall keep if it is compelled to layoff or terminate
some employees, it nevertheless ignored that consideration
by selecting two mechanics with less seniority or service
tenure with Respondent than Ober had, and transferred
them from its Laconia to its Manchester terminal In fact
Ober had more seniority or longevity with Respondent
than five of Respondents six mechanics Respondent's
statements to Ober during the June 26 discussion, wherein
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its vice president told Ober Respondent would eliminate
the need for mechanics (including Ober) rather than rehire
Ober, constituted interference with, restraint upon, and
coercion against Ober s exercise of rights guaranteed in
Section 7 of the Act, in view of Mr Willey's prior conver-
sations in which he asked Ober to resign from the Union
Counsel for Respondent argues that if William Ober has
in fact been the victim of any wrong at all, it is a wrong for
which the proper redress may be achieved by filing a griev-
ance pursuant to his union contract While counsel's con-
tention might be correct, in so far as Ober may well have a
legitimate ground for filing a grievance, it has not been
shown that such a right at the same time precludes his
causing the issuance of this complaint by the Board, to
redress conduct of the Respondent which clearly violates
the Act
Finally, when all of the evidence is viewed from every
dimension most favorable to the Respondent, I am strong-
ly persuaded, and thereupon conclude and find that Re-
spondent discriminatorily terminated Ober, rather than
transfer him, because he did not renounce his membership
in Lodge 1898, so as to free Respondent's New Hampshire
mechanics from unionization and free Respondent from
the contractual obligation of dealing or bargaining with
two, instead of one union in its New Hampshire opera-
tions Respondent's contention that it terminated Ober be-
cause it closed its Cambridge facility for economic reasons
is a mere pretext to conceal its real and unlawful reason
Respondent's termination of William Ober and its subse-
quent failure and refusal to reinstate, rehire, or transfer
him, were therefore discriminatory and violativc of Section
8(a)(3) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act
It having been found that Respondent interfered with,
restrained, and coerced employee William Ober in the ex-
ercise of his Section 7 protected rights, in violation of Sec-
tion 8(a)(1) of the Act, and that it discharged William Ober
in violation of Section 8(a)(3) and (1) of the Act, the rec
ommended Order will provide that Respondent offer Wil
Liam Ober reinstatement to his job, and make him whole
for loss of earnings within the meaning and in accord with
the Board's decisions in F W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co 138
NLRB 716 (1962 ), except as specifically modified by the
wording of such recommended Order
Because of the character of the unfair labor practice
herein found , the recommended Order will provide that
Respondent cease and desist from or in any other manner
interfering with , restraining , and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act
N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4,
1941)
Upon the basis of the above findings of fact and upon
the entire record in this case , I make ttie following
CONCLUSIONS OF LAW
1 F S Willey Co, Inc, the Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Lodge 1898, International Association of Machinists
and Aerospace Workers, AFL-CIO (JAM), is and has been
at all times material herein, a labor organization within the
meaning of the Act
3 By conditioning Ober's continued employment in
New Hampshire upon his resignation from his union, and
by threatening to sell its trucks and eliminate Ober's job if
Ober filed a successful charge with the Board, Respondent
violated Section 8(a)(1) of the Act
4 By discriminating in regard to tenure of employment
of William Ober, thereby discouraging membership in the
Union or other labor organization, Respondent has en-
gaged in unfair labor practices condemned by Section
8(a)(3) and (1) of the Act
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER4
Respondent, F S Willey Co, Inc, Laconia, New
Hampshire, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Threatening employees with the elimination of their
jobs if they file successful complaints with the National
Labor Relations Board which orders their reinstatement
(b) Discriminating in regard to tenure of employment of
employees thereby discouraging membership in the Union
or other labor organizations
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act
4 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 by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
F S WILLEY CO
2 Take the following affirmative action necessary to of
fectuate the policies of the Act
(a) Offer William Ober reinstatement to his former posi-
tion or, if such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights previously enjoyed, and make him whole for
any loss of pay suffered by reason of the discrimination
against him with interest at the rate of 6 percent, in the
manner described 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 under the terms
of the recommended Order
(c) Post at Respondent's terminals at Laconia and Man-
chester, New Hampshire, copies of the attached notice
marked "Appendix " 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 1, after being
duly signed by Respondent's representatives, shall be post-
ed by it immediately upon receipt thereof, and be main
tained by Respondent for 60 consecutive days thereafter,
in conspicuous places, including all places were notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
5 In the event the Board s Order is enforced by a Judgment of the 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 of the
National Labor Relations Board
APPENDIX
1179
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with the elimina-
tion of their jobs if, as a result of a charge filed by
them with the National Labor Relations Board, the
Board were to Order the reinstatement or rehire of
such employees
WE WILL NOT discourage membership in Lodge 1898,
International Association of Machinists and Aero-
space Workers, AFL-CIO (IAM), or any other labor
organization, by discharging employees or otherwise
discriminating in any manner in respect to their tenure
of employment or any term or condition of employ
ment
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise and en-
joyment of rights guaranteed to them by Section 7 of
the National Labor Relations Act, except to the extent
that such rights may be affected by lawful agreements
in accord with Section 8(a)(3) of the Act
WE WILL offer William Ober immediate and full re
instatement to his former position or, if such position
no longer exists, to a substantially equivalent one,
without prejudice to the seniority and other rights and
privileges enjoyed by him, and make him whole for
any loss of pay he may have suffered by reason of his
discharge, with interest at the rate of 6 percent per
annum
All our employees are free to become, remain, or refuse
to become or remain members of said Union or any other
labor organization, except to the extent that such rights
may be affected by lawful agreements in accord with Sec-
tion 8(a)(3) of the Act
F S WILLEY CO INC