Frontier Marketing Cooperative

National Labor Relations Board - Board Decisions

May 31, 1977

229 N.L.R.B. 1046 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frontier Marketing Cooperative and General Team-
sters, Warehousemen and Helpers Union, Local
890, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca; and Truckdrivers, Warehousemen and Helpers,
Local Union 898, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America. Case 21-CA- 14432
May 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On January 17, 1977, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Frontier Market-
ing Cooperative, Brawley and Montebello, Califor-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
I [he Respondent has excepted to certain credibility lindings made by
the Administrative law Judge. It is the Board's established policy not to
overrule 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 DrO Wall Products,
Ira<, 91 NlRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefull) examined the record and find no basis Ilr reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me on September 15 and 16, 1976,2
229 NLRB No. 162
based upon a complaint issued on May 5 by the Regional
Director of the National Labor Relations Board for Region
21. The complaint was based upon a charge filed by
General Teamsters, Warehousemen and Helpers Union,
Local 890, and Truckdrivers, Warehousemen and Helpers,
Local Union 898, both affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, on February 27 and amended on
March 29 and May 3. The complaint alleges that Frontier
Marketing Cooperative (herein called Respondent) has
engaged in and is engaging in certain violations of Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended.
Issues
The principal issue is whether or not on various dates in
February and March Respondent discharged nine of its
line drivers because it wished to avoid unionization of
those drivers. Subsidiary to that is the issue of whether or
not Respondent, acting through its supervisors, Paul Yates,
manager; Mike Hopkins, assistant manager; Chalen
Carter, personnel supervisor; and Sammy Runnells, main-
tenance supervisor, in February and March engaged in
certain violations of Section 8(a)(1) of the Act such as
creating the impression of surveillance, coercively interro-
gating employees regarding their union activities, and
threatening to close the business in order to avoid
unionization. During the course of the hearing, additional
incidents which might be viewed as violations of Section
8(a)(l) were also litigated. These all involved threats by
Carter to certain husband-and-wife driving teams that if
the Union became their representative it would insist on
separate seniority dates and that such insistence would
break them up as a driving team.
Respondent defends contending that the discharges were
not discriminatory and occurred as a result of Respon-
dent's effort to clean up a high accident rate and to retain
favorable insurance coverage. The General Counsel argues
that the real motive behind the discharges was to destroy
the Unions' organizational drive and that the insurance
matter was seized upon by Respondent merely as a pretext.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all material times Respondent has been a California
corporation with corporate headquarters in Brawley,
California, and having facilities located in Montebello and
At the outset of the hearing Mr. Marquette asked leave to appear for
the avowed purpose of representing Paul Yates. Respondent's manager, in
Yates' individual capacity because of what he termed a probability of
individual civil liability arising from an Interstate Commerce Commission
complaint. When I expressed doubt about the propriety of such an
appearance. Mr. Marquette also stated that the ICC's Bureau of Enforce-
ment could choose to file a misdemeanor complaint against Yates as well as
seeking certain civil sanctions. Upon Mr. Marquette's representation that
Yates might be the subject of a criminal proceeding, in that facts which
might be adduced in the instant matter might have some bearing on a
possible criminal charge. I granted the motion. Mr. Marquette was only
permitted to participate and cross-examine witnesses who testified regarding
Yates' conduct.
2 Hereinafter all dates are 1976 unless otherwise noted.
1046
FRONTIER MARKETING COOPERATIVE
Salinas, California. It is an agricultural cooperative
engaged in hauling agricultural goods to market for its
farmer-members and annually performs services valued in
excess of $50,000 for customers located outside California.
Accordingly, I find that at all times material Respondent
has been engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.3
11. THE LABOR ORGANIZATIONS INVOLVED
Respondent admits, and I find, that at all times material
both unions are, and at all times material have been, labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Participants and Background Evidence
As noted above, Respondent is an agricultural coopera-
tive engaged in hauling the fresh produce grown by its
farmer-members to various markets throughout the United
States. It was formed in 1973 and continued to operate
until the end of July 1976, when it ceased operations and
began to wind up its business. It began doing business with
a fleet of 5 trucks; since each truck requires 2 drivers, it had
10 drivers. By the end of fiscal 1974 it had 24 trucks and 48
drivers and by the end of fiscal 1975 had 34 trucks and 68
drivers. In early 1976 it had approximately 41 trucks and
82 drivers.
Respondent's daily operations were controlled by Man-
ager Paul Yates, who was hired in 1973 to commence
operating the company. He was assisted by Mike Hopkins,
the personnel and safety director. In the summer of 1975
Hopkins became assistant manager and Chalen Carter, a
former driver, assumed the duties of personnel and safety
director. During 1976, and for an indeterminate time prior
to that, its maintenance supervisor was Sammy Runnells.
Respondent's answer admits that Yates, Hopkins, and
Carter were all supervisors within the meaning of Section
2(1 1) of the Act, but denied Runnells' supervisory capacity.
However, the evidence clearly shows that Runnells had the
power to hire and fire the shop employees under his
control. Accordingly, I conclude that he, too, is a
supervisor within the meaning of the Act.
Although Respondent's corporate headquarters are
located in Brawley, its operations center was Montebello.
Yates, Hopkins, Carter, and Runnells all were officed in
Montebello and all drivers were dispatched from that
point. Additionally, that was the location of Respondent's
permanent maintenance shop. Some time earlier, not
shown in the record, Respondent's operations center had
been located on Slauson Street in Los Angeles.
:' In its answer and at the hearing. Respondent denied the legal
conclusion that it is engaged in commerce or in a business affecting
commerce within the meaning of Sec. 2(6) and (7) of the Act. However.
Respondent does not address that issue in its brief and I presume that it has
abandoned that contention. At the hearing it also contended that
jurisdiction should not be asserted because the line drivers involved herein
were agricultural employees within the meaning of Sec. 2(3) of the Act.
However. that issue was fully litigated before the Regional Director in a
The driver principally responsible for the union orga-
nizing drive in early 1976 was Willie (Gene) Ashley. He
first began inquiring about union representation in approx-
imately October 1975, but did not begin organizing
seriously until January 10, 1976, when he and driver J. E.
Brannon met with Local 890's representative Lyle Berg in
Yuma, Arizona. Shortly thereafter, Berg mailed them
authorization cards and the two of them, together with
employee Lloyd Barnes, began soliciting signatures on the
cards. Within a short time, drivers Cliff Laurence and Gary
Tompkins reported the organizing to Yates.
Yates, Hopkins, and Carter all admitted that they
learned of the union organizing campaign in January.
However, long before the organizing began, Yates had
expressed his antipathy toward unionization and how he
would meet it if it occurred at Respondent.
Ashley testified that beginning in 1974 and going
through the spring of 1975 he had five or six conversations
with Yates regarding unions. Specifically, he recalled an
April 1975 conversation at the old Slauson Street terminal
in which he and Yates were comparing Respondent's
wages with the wages earned by union drivers. During the
conversation, according to Ashley, Yates stated that he was
going to bring Respondent's wages up a little. Yates stated
also that he had no use for unions and that he would "do
any cutthroat, any underhanded thing that he could to
keep them out." When asked about that statement, Yates
testified that he could not recall making such a statement.
Driver Russell O'Shell testified that in the first half of
1975 he was socially involved with a woman who lived
across the street from Yates, and, as a result of this
relationship, he and the woman went out socially with
Yates and his wife on at least 10 different occasions. He
testified that on three or four of these occasions the subject
of unionization was discussed. According to O'Shell, Yates
said that he would never have a union in the company and
O'Shell asked him how he could stop the employees from
voting for union representation. Yates replied, "Oh, there's
ways." O'Shell asked, "How do you mean?" and Yates
said, "Well, we can let the law, you know, do the dirty
work." When O'Shell asked what he meant, Yates said, "I
know the drivers' records. I know them like the back of my
hand . . . I can change insurance companies five or six
times if I feel like it and by using the drivers' records I can
get rid of them that way." O'Shell also recalled Yates
saying, "If it comes right down to brass tacks, I can go out
of business ... I can start up another business." 4
B. The 8(a)(1) Allegations
During late January or early February, driver Willie
(Gene) Ashley asked driver Laurence to sign a union
authorization card. Laurence refused and promptly told
Carter and Yates that Ashley was organizing a union.
representation case. Frontier Marketing Cooperaotie, Case 21 RC 14534.
and decided to the contrary. Respondent did not request review of the
Regional Director's decision in that regard and accordingly his decision is
dispositive of that issue. See Sec. 102.67(f) of the Board's Rules and
Regulations. Senes 8. as amended
None of the above is alleged to be violative of the Act, undoubtedly
because the statements were made outside the 6-month limitation period set
forth in Sec. IO(h.
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ashley, who must be confused about the date, testified that
on or about March 1,5 after returning from the trip in
which he had solicited Laurence's signature, Carter called
him into his office, just as Laurence was leaving. While
Ashley was discussing the just-completed trip, Laurence
returned and told him that Yates wanted to see him. Upon
arriving at Yates' office, Ashley testified that Yates said:
"Well, I hear we are going to have a union around here."
Ashley said he knew nothing about it, and Yates said,
"Well, if that's the way they vote, that's the way they vote."
Ashley reponded that all he had heard was rumors, and he
knew nothing about it.
As Ashley was on his way back to the garage, Shop
Superintendent Sammy Runnells came running from his
office. By that time Ashley had joined drivers J. E.
Brannon and Art Reed. Ashley testified that Runnells said
to him, "I hear you know all about the union bit." Ashley
says he replied, "No, I don't even know what local is
involved." Runnells then said, "From what I hear, you
know the locals, the union and everything else that is
involved in it."
Brannon's testimony tends to corroborate Ashley,
though he, too, appears to misconceive the date of the
conversation. He testified that at 8:30 a.m. on approxi-
mately February 25, he, Ashley, Barnes, and several others
were standing outside Runnells' office near a pickup truck,
discussing the number of authorization cards they had
obtained. Runnells joined them and asked Ashley if he was
involved with the union organizing. Brannon said that
when Ashley told Runnells he didn't know what Runnells
was talking about, Runnells replied that Ashley was
"bullshitting" him, that Ashley knew what Runnells was
talking about, that Ashley was "one of the kingpins," and
that he wished he knew all of the others who were involved.
Brannon said the conversation ended when Runnells said,
"The trucks at the Company will never be organized . . .
before it [is], the trucks will be parked on the back lot and
sold at auction."
Later that same day, about 10:30 a.m., Brannon was in
Chalen Carter's office while Carter checked Brannon's
logs. Carter asked Brannon if he knew anything about the
union organizing. When Brannon denied knowledge,
Carter said, "This union is creating a hell of a situation for
us." At that point Hopkins entered the office. Brannon said
Hopkins had overheard the last portion of the conversa-
tion, and asked Brannon if he would vote for a union.
When Brannon replied obliquely, saying he would work for
the man who paid him the highest wage, Hopkins said that
if the company had a union, "within a year's time we will
be closed. There will be padlocks on the front and back
doors and there will be cobwebs hanging from the ceiling."
See Carter's corroboration, infra, although he places the
conversation on or about March 1.
C. Chalen Carter's Testimony
Chalen Carter and his wife Allene were hired by
Respondent in April 1974 as line drivers. They worked as a
driving team until August 1975 when Carter replaced
I All the super\visory witnesses admitted that they learned of the
organizing from L aurence in January.
Hopkins as Respondent's safety director in Montebello. At
some point, not clear in the record, Allene Carter began
working in Respondent's Montebello office as a payroll
clerk.
During 1974, while still working as drivers, the Carters
happened to meet driver Willie (Gene) Ashley in a
truckstop in either Nevada or New Mexico. During the
conversation which ensued, Ashley asked Carter if he
thought Respondent would "go union." Carter replied that
he thought it would. He noted that the Cooperative's
farmer-members' field employees were organized as were
other portions of the farms.
When in January 1976 management learned from
Laurence and Tompkins that union organizing was
occurring, Carter recalled his earlier conversation with
Ashley and guessed, correctly, that Ashley was one of the
proponents.
Carter testified that, a few days after management
learned of the organizing drive, he attended a management
meeting conducted by Yates. Also present during that
meeting were Hopkins and Runnells. Carter testifited that
at the meeting "We discussed about what we could do
about destroying the union activities." He said that
Hopkins mentioned that Respondent could discharge some
of the drivers by using their bad driving records. He
described the conversation as a general discussion regard-
ing what could be done about the drivers who were
involved and how the company could discharge them.
Carter, himself, suggested invoking the company's three-
warning letter rule as a means of getting rid of union
adherents. Carter testified that during the meeting the four
of them attempted to figure out which drivers were
involved. The consensus was that the drivers who were
involved were probably Ashley, Bill Favello, and David
Dingee. No decision was reached at that time, but
thereafter on a nearly daily basis the four continued to
discuss the subject.
In the second week of February, according to Carter,
Respondent did reach a decision on what to do. This
occurred at a meeting attended by Yates, Hopkins, and
Carter. Hopkins decided, apparently with Yates' concur-
rence, that the company would discharge the union
adherents based on their driving records. Yates told Carter
to obtain new driver reports from the California Depart-
ment of Motor Vehicles. These records, known as MVR's,
are computer printouts recording each licensed driver's
various infractions of the vehicle code. It also includes
certain out-of-state violations. At this meeting they also
decided that other union adherents were J. E. Brannon and
Lloyd Barnes.
Carter testified that Yates instructed him to get MVR's
on all the drivers, but that there were certain individuals
who were specifically named whose records he was to
obtain. These were Ashley, Dingee, and Favello.
Both Carter and Hopkins testified that U.S. Department
of Transportation regulations require trucking companies
to obtain MVR's on all new hires within 30 days as well as
updating the MVR's on an annual basis. Carter said that
the annual update was normally performed on the
1048
FRONTIER MARKETING COOPERATIVE
employees' anniversary of hire; Hopkins said that it was
done normally at the end of each calendar year.
Pursuant to Yates' instructions, Carter followed the
Company's practice to obtain new MVR's on all employ-
ees. Respondent's practice was to request MVR's through
Respondent's insurance broker, who was then Frank B.
Hall & Co. of Salinas. According to Carter, Hall made the
actual request to the Department of Motor Vehicles and
the MVR's were sent directly to Hall from the Department.
Hall stamped them on the date received and forwarded
them to Carter. 6 Of the nine MVR's Respondent placed in
evidence, those of employees Roland Frieze, Percy Rhone,
Charles Johnson, Thomas Dye, David Dingee, and Russell
O'Shell, were all stamped as received by the insurance
agency on February 20. Those of James Smith and Willie
(Gene) Ashley bear the date stamp of March 5. That of
Reubin Williams is not stamped.
Carter testified that he had obtained an MVR on Ashley
in December and, when he so advised Yates, Yates told
him to destroy the old one and obtain a new one. Carter
also testified that when he examined Favello's MVR he
decided that it was not bad enough to use as a justification
to discharge him. Accordingly, Favello was not discharged.
With regard to all of the drivers alleged to have been
unlawfully discharged, except for O'Shell, I note the
following:
Roland Frieze was hired in late January 1976 and
discharged on February 11. Carter stated that he requested
an MVR on Frieze at the time he was hired. The MVR
shows that it was received by the insurance broker on
February 20, 9 days after he was actually discharged.
Percy Rhone had worked for the company for only 2
months and Carter claims he had earlier obtained Rhone's
MVR. Carter said he just placed it in Rhone's file and
when the union organizing began he pulled Rhone's MVR
and used it to justify his discharge. However, as noted
above, the MVR received in evidence was not received by
the insurance broker until February 20. Nonetheless,
Carter said that he fired Rhone, "Not because I thought he
had anything to do with the Union, because if we
discharged the guys we thought had union activities on
account of their bad-driving records and let the other guys
work with bad-driving records, it wouldn't be right." He
said that he would not have fired Rhone had it not been for
the advent of union activities by other employees.
Charles Johnson was discharged on February 24. Accord-
ing to Carter, he was not involved in the decision to
discharge Johnson.
Thomas Dye was hired in August 1975. Carter testified
that he had earlier obtained Dye's driving record and knew
his record before requesting another MVR. Carter said that
he was not involved in the decision to discharge Dye who
was dismissed on February 24. Dye was rehired for a short
time in July, prior to the shutdown.
David Dingee was hired in August 1974 and discharged
on February 26. Carter said that he became aware in the
fall of 1975 that Dingee had several speeding tickets as well
as one conviction for driving while intoxicated (DWI).
' Carter and Hopkins both testified regarding the procedure followed to
obtain the MVR's. The date stamping procedure was described only by
Hopkins.
James Smith had been hired in January and Carter said
he had obtained an MVR on Smith at that time. However,
as noted above, the MVR received in evidence was not
received by the insurance broker until March 5. He was
actually discharged on March 17. Carter said that he was
not involved in the decision to fire Smith.
Willie (Gene) Ashley was hired in April 1974 and
discharged on March 17. Carter testified that he did not
participate in the decision to discharge Ashley, but that
Hopkins instructed him to give Ashley his termination
papers and he did so. As noted above, Carter said he had
obtained an MVR on Ashley in December, but destroyed it
and asked for a new one pursuant to Yates' instructions.
Reubin Williams was to be discharged on March 18,
sometime after Carter obtained his MVR. As noted,
Williams' MVR was not date stamped by the insurance
broker.
Carter testified that before the commencement of the
union organizing campaign no line driver, except those
who had actually had their license revoked, had been
discharged because of excessive speeding tickets or DWI
convictions. When Carter was asked for his opinion
regarding whether any of the nine dischargees would have
been fired had it not been for the advent of the Union. he
answered, "Not by me."
In March and April, Carter had occasion to speak to four
husband-and-wife driving teams on various occasions.
These teams were James and Henrietta Branchard, Carl
and Sally Armstrong, Ed and Paula Yott, and Richard and
Flo Funderburke. He testified that in each of these
conversations one member of the team asked him what
effect unionization might have upon them. In each case he
replied that if one spouse had a different seniority date
than the other spouse the Union would insist on breaking
up the team because seniority dates would control driving
assignments.
Carter testified that, on approximately March 1., he had a
conversation with driver J. E. Brannon in Carter's office.
Also present was Assistant Manager Hopkins. Carter said
that he asked whether Brannon was going to continue to
work for Respondent if the Unions became the employees'
representative. According to Carter, Brannon answered
that if the company across the street was paying more per
mile that is where he would be working at. Carter recalls
Hopkins then saying that if the Union became the
representative of Respondent's employees, "Within a year
there would be padlocks on the doors and cobwebs on the
ceiling."
On February 20, Respondent changed its insurance
carrier from Travelers Insurance to Transport Indemnity.
At some point prior to that, the broker, Frank B. Hall &
Co., had advised Respondent that Travelers would not
renew its insurance and would permit it to expire on
February 2. Because Respondent was unable to obtain
immediate substitute coverage, Travelers extended its
coverage on a temporary basis to February 20, when it
canceled, apparently because of three major accidents
which occurred during the extension period.
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carter testified that, on approximately February 10 or
I I, a representative of Transport Indemnity came to
Respondent's office to inspect the MVR's of Respondent's
drivers. Carter testified that, acting pursuant to instruc-
tions, he showed them all the good ones that he could find,
including the MVR's of drivers no longer employed by
Respondent. 7
Carter was removed as Respondent's supervisor some
time after the nine drivers were discharged and returned to
line driving.
D. Allene Carter's Testimony
Mrs. Carter testified that while she was working as
Respondent's payroll clerk, shortly after February 1 (her
birthday), her husband told her of the union organizing
drive. Several days later she had a conversation with Yates
and Hopkins in Yates' office. According to her, Yates said
that if the Union came in Respondent would go out of
business "because the ICC regulated us as to how much we
could charge for our freight and that we couldn't charge
enough for our freight to pay any men union wages."8 She
said that this prospect frightened her and so she told them
that she was certain that Ashley and Favello were behind
the organizing.
Approximately a week later she and Yates had another
conversation in Mr. Carter's office. According to her, Yates
said that he would close the doors and put the trucks up for
auction before the company would go union. On another
occasion she heard Yates talking to Mr. Carter about
terminating the drivers because of their bad records and
saying that they would use the insurance company as an
excuse to discharge them. She specifically recalls Yates
asking Carter on several occasions, "Would you testify to
that in court?" She said that her husband avoided
answering that question.
On cross-examination, Mrs. Carter candidly revealed
that she harbored a certain amount of dislike for Mrs.
Yates, who also worked at Respondent's Montebello office,
and that on several occasions she had temporarily quit
because of tension between her and Mrs. Yates. She
believed Mrs. Yates was jealous of her because she did her
job well thereby attracting the favorable attention of Mr.
Yates. Mrs. Carter also candidly stated- that she quit
working for Respondent on the day that her husband was
asked by the company to give an affidavit to an NLRB
investigator, believing that they were asking him to lie to
the Board agent. Some weeks before, Mr. Carter had been
removed from his office duties and had returned to line
7 Although counsel for the General Counsel asked Carter if he gave the
insurance investigators the misleading MVR's pursuant to someone's
instructions, he did not ask Carter who gave him those instructions. I believe
it is reasonable to assume that those instructions came from either Yates or
Hopkins. as they would be the only ones having sufficient authonty over
Carter's actions. Moreover, Yates had earlier told Carter to destroy Ashley's
MVR. Thus, it is apparent that Respondent's management officials were
willing to "manage" the MVR's in such a fashion as to best benefit the
company.
I Respondent argues that Allene Carter should not be credited because
since the ICC did not regulate Respondent, as it hauled exempt freight and
fresh produce, it is unlikely that Yates would have said that it did. However,
although not fully explicated in the record (Mr. Marquette permitted me to
read a copy of the injunction petition). the ICC did seek an injunction
against both Respondent and Yates by filing an action in U.S. District
driving. Because Carter was on the road and had been
specially called back for the NLRB interview and because,
in her view, Yates and Hopkins were being excessively nice
to Carter, and because she recalled Yates' earlier requests
to Carter to testify falsely, she concluded that they were
pursuing those requests. With those matters in mind she
became angry and quit.
E. The Testimony of the Line Drivers Regarding
Their Discharges
Ashley testified that he returned to Montebello on
March 16 from a run. On the following day he went into
the office and Carter handed him his termination notice.
He asked Carter what it was all about and Carter said only
that he had been terminated. When Ashley asked Carter
who had terminated him, Carter said, "The Company."
Ashley then asked which company official had made the
decision, but Carter refused to answer him. As a result,
Ashley went to see Yates who told him to speak to
Hopkins. Ashley testified that when he asked Hopkins why
he was being fired, Hopkins replied, "Well, I have changed
insurance companies." Ashley asked if the insurance
company had told him to let him go and when Hopkins
replied negatively, Ashley persisted asking, "Why are you
letting me go, then?" Hopkins responded, "Well, it's one of
those things."
Shortly thereafter Ashley spoke to Yates and asked him
if the insurance company had told Respondent to let him
go. When Yates said no, Ashley asked him if there was
something wrong with his work. Ashley recalls Yates
replying, "No, there is nothing wrong with your work. You
are the best driver I have got." Ashley then asked him if it
was because of the union activities and Yates said, "No, I
didn't even know you were involved in any union
activities." The termination notice which Carter had given
Ashley stated that Ashley was being discharged as a
"negligent operator." 9 Yates said his instruction to Carter
was to fire all drivers listed by the state as "negligent
operators" and all those whose records showed a DWI
conviction.
Thomas Dye testified that he was discharged on
February 24 by Carter, and the reason given him was a
1973 DWI conviction.
Dingee testified that he was discharged on February 26,
while he was in Brawley. He had just finished signing a
union authorization card and had telephoned Yates in
Montebello regarding some pickup instructions. In the
middle of the instructions, Yates left the line, making
Court in Los Angeles. Moreover, driver Rhone testified that he had hauled
empty glasses, a nonexempt item, to Houston. I therefore reject the
argument that Allene Carter should be discredited on that basis, for it is
highly possible that ICC regulation was a matter of some discussion in
Respondent's office.
9 Under California Department of Motor vehicles regulations, operators
who drive more than 25.000 miles per year may be termed "negligent
operators" if they receive 6 points in an I l-month period, 8 points in 24
months, or 10 points in 36 months. Most convictions are worth one point,
although serious violations (reckless driving. DWl's hit-and-run accidents)
are worth two points. Conviction records are kept for 37 months. but serious
convictions remain on the record for 7 years. Source: California Driver's
Handbook. (Jan. 1976 ed.). p. 54, published by California State Department
of Motor Vehicles.
1050
FRONTIER MARKETING COOPERATIVE
Dingee wait a few minutes. When Yates returned he said,
"Sorry, Dave, I am going to have to cut you loose. I just got
your DMV [MVR] back."
Dingee had been convicted of a DWI violation on
February 18, 1975. He testified that he had received the
ticket in December 1974 and had to spend several days in
jail. Later, according to Dingee, Hopkins arranged for
rescheduling his trial. When he was convicted, he was fined
and his license placed on probation, but the company
returned him to driving almost immediately.
Percy Rhone had only worked for Respondent a short
time, having been hired in January 1976 and discharged,
according to him, on February 16. Rhone is unable to read
and write. He testified that at the time of his hire his sister
filled out his application booklet and that he instructed her
to list the tickets that he had received on the form. That
portion is removable from the application booklet. On the
day he began working, January 15, Carter asked him to
sign in blank a certification form listing of all his
convictions. Rhone did so. Later, Carter filled in the date,
the employer's name and address and signed it on behalf of
Respondent. The portion of the certificate listing convic-
tions remained blank. At the hearing it developed that the
certificate which Rhone signed on January 15, was the tear-
away portion of the application form. It is not clear
whether he signed the same tear-away slip which had been
submitted by him and his sister or whether the form filled
out by his sister was destroyed and this one substituted.
Carter did not testify about this incident and Rhone's sister
was not called as a witness.
In any event, Rhone signed a union authorization card
on January 30, and on February 16 Carter told him he was
being let go. Rhone recalls Carter saying that he was being
fired because of safety and insurance and that Rhone had
too many tickets for the insurance.
Russell O'Shell testified that on January 30 he signed a
union authorization card given him by Ashley. In the
afternoon of February 25, he went to pick up his paycheck
and, while he was talking with some other drivers, Carter
called him to his office. When O'Shell went into Carter's
office, he noticed that all his bedding and personal
belongings which he kept in his truck were piled in a
corner. He asked Carter what was wrong and Carter
replied, "Well, the truck is back out on the road." Carter
handed O'Shell a discharge slip which was dated February
24. Carter said that the discharge was because O'Shell was
a "negligent operator." Carter then asked O'Shell if he
could get three tickets removed from his record but O'Shell
was too dumbfounded to reply.
O'Shell couldn't understand why the company was
taking action against him at this time because the company
knew that his license had been placed on probation in
1975. Hopkins had even attended the counseling session
with him and knew that the ticket involved was a Virginia
violation which had occurred in March 1974.
On the day of his discharge, as he was leaving, O'Shell
saw Yates and asked him what it all meant. He said Yates
replied that Respondent had changed insurance companies
and he knew that O'Shell had only a few tickets but that
was the way the ball bounced. O'Shell admitted that he had
had a truck accident in Columbus, Ohio, shortly before his
discharge. However, Respondent does not cite the accident
as a reason for O'Shell's discharge, nor is there any
evidence regarding the nature of the accident, the amount
of damage sustained, or whether the accident was O'Shell's
fault.
None of the other drivers were called to testify with
regard to their individual circumstances. Hopkins testified
that Smith was hospitalized at the time of his discharge as a
result of a workman's compensation accident, and, accord-
ingly, Hopkins mailed Smith his termination notice at the
hospital. It also appears from the record that Reubin
Williams was scheduled for discharge on March 18, but
that he didn't appear for work that day and has not
appeared for work since that time.
F. Respondent's Defense of the Discharges
Yates and Hopkins both testified that the nine discharges
in question were all triggered by the rising accident rate
and the concomitant difficulty of obtaining insurance
coverage. They stated that the accident rate began to rise
during late 1975 and continued through early 1976. There
appears to be no doubt that Respondent was suffering
from excessive costly accidents and was also caught in an
insurance bind. It is clear that each of the nine dischargees
had serious defects in their driving records. All but Dye
and Frieze were listed by the Department of Motor
Vehicles as "negligent operators" and both Dye and Frieze
had been convicted of DWI violations, although Dye's
conviction was in September 1973 and Frieze's conviction
was in January 1970.
Absent any antiunion considerations, it would appear
that Respondent had a legitimate business need to rid itself
of these drivers. In fact, I accept Respondent's contention
that the existence of these records was sufficient just cause
for their discharge. The question I must answer, however, is
whether or not Respondent used their driving records as
the reason for the discharges or whether, as contended by
Chalen Carter. Respondent used the records as an excuse
to destroy the union organizing campaign.
When Yates was asked whether or not he made a
statement (apparently to Ashley) that he would resort to
any lowdown cutthroat thing to keep the Union out, he
only replied that he "couldn't recall" making such a
statement. Similarly, when asked if he had ever made a
statement (apparently to O'Shell) to the effect that he
would keep the Union out by "letting the law do the dirty
work," he tempered his denial by saying, "No, sir, not as I
recall. I don't know what they are talking about." Finally,
when asked if he had made that statement either before or
after learning of the union activities at Respondent he
stated, "Not as I can recall, no, sir."
In addition, neither Yates nor Hopkins effectively
controverted Chalen Carter's description of the manage-
ment discussions in January where, according to Carter, it
was decided to use bad driving records to get rid of union
adherents as well as discharging bad drivers who were not
engaged in union activities in order to make the discharges
of the union activists more credible.
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Respondent's Attitude Toward Bad Driving
Records
Throughout the hearing, the General Counsel adduced
evidence relating to Respondent's past condonation of
drivers' bad records. In fact, Yates told the Board
investigator that Respondent's policy regarding driving
records was very lenient. For example, in 1975 a driver
named Bailey had an accident, was discharged, and was
immediately put back to work on a promise to do better.
Yates was reluctant to admit this incident on the stand.
Also in 1975 drivers Ford and Collins had bad driving
records, were fired, but were immediately rehired.
From December 1975 through February 1976, immedi-
ately before the change in insurance carriers, Respondent
suffered three major accidents. The first, by James
Wallace, occurred on January 23. The parties stipulated
that it caused $1,500 damage.10 The second, on February
I I, involved driver Bill Wilson who fell asleep at the wheel.
The parties stipulated that Wilson's accident caused about
$16,000 damage. Hopkins' testimony increased the loss to
approximately $23,000. The third involved David Dingee,
who either fell asleep at the wheel or whose brakes locked.
The parties stipulated that Dingee's accident caused
$36,000 damage to the vehicle. Hopkins' testified that the
tractor was a total loss and that together the tractor and
trailer are worth between $66,000 and $68,000.
Hopkins also testified that in March, apparently after the
change in insurance carriers, there were two more acci-
dents, one totaling $33,000 and the other $24,000 in losses.
Of the three occurring in January and February, only
one driver, Dingee, was discharged. However, Respondent
does not cite the accident as a reason for Dingee's
discharge; instead it relies on the receipt of his MVR
showing him to be a negligent operator.
Yates also testified that drivers were permitted to drive at
any speed that they wanted to whether it was 55 mph, 50
mph, or 80 mph until the latter part of 1975. In late 1975,
according to Yates, Respondent in an effort to reduce the
number of accidents, changed the transmissions on all of
its tractors, reducing their top speeds from 78 to 80 miles
per hour to 62 to 64 miles per hour. Since this resulted in a
more inefficient truck, they also added airshields and
changed from Goodyear to Michelin tires. Although these
were costly changes, T" and were assertedly made in
anticipation of insurance renewal difficulties, Respondent
did nothing at that time regarding the drivers with bad
records.
Several of the drivers testified that Yates' attitude toward
their having demonstrated only an overriding interest
toward getting the freight to market on time. For example,
Dingee testified that Respondent's officials never said
anything regarding excessive speeding-only to get the
load to its destination on time. In December 1974, he was
jailed for a few days on a DWI charge while driving a
private auto. He says Hopkins arranged a postponement of
'O It appears that the Wallace accident also involved a bodily injury. I
reach this conclusion, which is not clear from the record, because there was
only one $1,500 accident during this period and because Hopkins testified
that the $1,500 accident included a bodily injury. He was not asked if
Wallace was the driver.
II The transmissions and airshields, according to Yates, cost $1,800 per
unit. The Michelin tires increased tire costs hy 20 percent.
his trial and, upon his conviction in February 1975, he was
fined and his license placed on probation. The company
assigned him a trip immediately thereafter. 2
O'Shell testified that sometime in the spring of 1975 he
had a discussion with Yates regarding a driver named Jerry
Scruggs, who apparently had some sort of difficulty with
liquor. O'Shell testified that during the conversation Yates
said, "I don't care anything about anyone that has tickets,
anyone that has drunk driving.... Those are the best
drivers I have .... They will run. They will stay on the
road and they [will make us money]."'" Yates said of
Scruggs: "Jerry Scruggs was a good driver. He was a safe
driver and what he done in a motel when he laid over
wasn't any of my business; it wasn't nobody's business if
he drank beer from the time he got there until the time he
was dispatched, as long as he wasn't drinking four to six
hours before he got in the truck." He did not clearly deny
O'Shell's testimony that he didn't care about tickets or
drunk driving. He did say he didn't recall telling O'Shell
that he didn't care about drunk driving-averring that if he
had, such a remark would be sort of a bad statement from
a management man.
Moreover, Ashley testified that Respondent's officials
even offered to assist him in obtaining another state's
driver's license if his California license was revoked. In July
1975 he was called in by the Department of Motor Vehicles
regarding a speeding ticket. Hopkins arranged a postpone-
ment of the hearing to July 27. Ashley was fearful that he
might lose his license, but according to him, Yates said,
"Don't worry about it. We will send [you] to Wyoming to
get a set." At the hearing, Ashley's license was placed on
probation for a year. When he notified Hopkins of the
probation and said he was worried, Hopkins also told him
not to worry, that they could get him a Wyoming license.
Ashley testified that Hopkins claimed he had "a connec-
tion" in Wyoming. Despite his probation, he was immedi-
ately put back to work. In September he received another
speeding ticket. He advised Hopkins of the ticket in order
to get time off to go to court, knowing that a conviction
would be a probation violation and would certainly result
in revocation of his license. He testified that Hopkins said,
"Give them your driver's license. Don't bother with the
attorney. I will send you to Wyoming to get you a set of
driver's license." But Ashley hired an attorney and was
acquitted. When he told Hopkins and Yates that he had
paid the attorney $300 to represent him, Hopkins was upset
that he had spent so much money on an attorney, because
they could have gotten him a Wyoming license.
Hopkins denied Ashley's testimony and denied having
any "connection" in Wyoming. In fact he claimed that,
when Ashley was discharged in March for his bad record,
Ashley produced either a Wyoming or New Mexico license
in an effort to remain employed.
The sum of the above incidents is that Respondent, prior
to late 1975 or early 1976, was clearly not concerned to any
great degree with the driving records of its drivers.
12 Hopkins claims he did not know that Dingee had been charged with a
DWI. He said he thought it was a drunk and disorderly charge. I do not
credit his denial.
1:s The bracketed portion is the correction of a transcript error.
1052
FRONTIER MARKETING COOPERATIVE
Moreover, these incidents tend to show that Respondent
had a healthy disregard of any law or regulation which
tended to interfere with production.
IV. ANALYSIS AND CONCLUSIONS
A. The 8(a)(1) Allegations
In view of Respondent's overall attitude toward meeting
its obligations under the law, in view of the overwhelming
testimony by Carter, Ashley, Brannon, and O'Shell,
because I found Yates and Hopkins less than candid on the
witness stand, and because Runnells did not testify, I find
the General Counsel has proven various violations of
Section 8(a)(1).
There is no question that in February, after Laurence
and Hopkins told Carter and Yates about Ashley's union
organizing, when Yates called him to his office and said "I
hear we are going to have a union around here," Yates
created the impression that Ashley's union activities were
under surveillance. Carrollton Standard Printing Co., 209
NLRB 540 (1974). Runnells also did the same thing when
he told Ashley in the presence of Brannon and others "I
hear you know all about the union bit. .... You know the
locals, the union and everything else that is involved in it"
and accused Ashley of being "one of the kingpins."
When Runnells went on to say that the company would
never be organized because before it was the trucks would
be "parked on the back lot and sold at auction" he
unlawfully threatened employees with closing the business
to avoid unionization. United Mercantile, Incorporated
d/b/a Globe Shopping City, 204 NLRB 663, 665 (1973).'4
When Hopkins asked Brannon how he would vote in a
representation election, such conduct constituted an
impermissible inquiry into Brannon's union sympathies,
feelings, and desires.
Brannon's version of Hopkins' statement, corroborated
by Chalen Carter, that if Respondent had a union, within a
year there would be "padlocks on the front and back doors
and . . cobwebs hanging from the ceiling," is also alleged
to be an unlawful threat to close the business to avoid
dealing with the Union, as are Yates' statements to Allene
Carter that Respondent would go out of business because it
couldn't charge enough for freight to pay union wages.
With regard to Hopkins' and Yates' statements that
Respondent would close its business, I note that, to some
extent, each statement is couched in language which,
standing alone, might be interpreted as predictive, rather
than coercive. However, in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 618 (1969), the Supreme Court
observed:
. . . an employer is free to communicate to his
employees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat of
reprisal or force or promise of benefit." He may even
make a prediction as to the precise effect he believes
4 That Runnells owned five or six trucks which he had leased to
Respondent and may have been referring only to his own trucks is of no
moment. lie was a supervisor and Respondent is responsible for his
conduct. In any esent. he was present during the antiunion strategy sessions
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences
beyond his control or to convey a management
decision already arrived at to close the plant in case of
unionization. See Textile Workers v. Darlington Mfg.
Co., 380 U.S. 263, 274, fn. 20 (1965). If there is any
implication that an employer may or may not take
action solely on his own initiative for reasons unrelated
to economic necessities and known only to him, the
statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without
the protection of the First Amendment.
Thus, applying the Supreme Court's rationale to those
statements which appear to be predictions, I conclude they
are not predictions and are violative of Section 8(a)(1), for
they are not supported by any objective fact tending to
show that the statements had any business justification.
Compare Jimmy-Richard Co., Inc., 210 NLRB 802, 804-805
(1974), enfd. 527 F.2d 803, 806 (C.A.D.C., 1975).
Finally, Chalen Carter admitted telling four husband-
and-wife driving teams that if the Union came in, it would
insist on separate seniority dates for driving assignments
and that would result in their being unable to drive
together. This clearly constituted coercion of those employ-
ees in the exercise of their Section 7 rights and thus is a
violation of Section 8(a)(1).
B. The Discharges
As I have noted in section III, F, supra, there is no doubt
that just cause for cleaning up the bad-driver problem
existed. But it is well settled that the existence of just cause
for discharge is no defense if that was not the true reason
for the discharge. As the U. S. Court of Appeals for the
Ninth Circuit stated in N.LR.B. v. Texas Independent Oil
Company, Inc.: 5
We do not agree with the proposition which
respondent apparently tries to urge upon this court, to
the effect that if we find that cause existed for the
discharge of any of these men, then we will have to
conclude that they were discharged for cause and that
"motive" for discharging the men is not controlling.
This court has previously answered this idea adversely
to, respondent, in Wells Inc. v. N.L.R.B., 9 Cir., 1947,
162 F.2d 457, 459-460, where we stated:
Nor, under the special facts of the case, is
motive for the discharge irrelevant, as Wells
alternatively asserts. The prohibition of § 8(3), by
its plain terms, extends to any discriminatory
discharge the purpose and manifest effect of
which is to discourage employee membership in a
labor organization. The existence of some justifi-
which occurred shortly thereafter and undoubtedly was reflecting Respon-
dent's attitude. not just his own.
is 232 F.2d 447, 450 (C.A.9, 1956).
1053
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able groundfor discharge is no defense ifit was not
the moving cause.
Thus, since in my view the General Counsel has made
out a primafacie case that Respondent was bent on doing
any "low-down, cutthroat" thing it could to avoid union
representation of the drivers, I must determine whether or
not the insurance situation was the true reason for the
disharge, or whether it was a pretext to cover up the
unlawful motive proven by the General Counsel.
First, with regard to the prima facie case, it is clear that
all elements of an 8(a)(3) violation are present. Ashley and
O'Shell credibly testified about Yates' union animus and
Yates had, in early 1975, given O'Shell a glimpse of what
Respondent's reaction to a union organizing drive would
be. Carter testified without contradiction that, upon
learning of the drive in January, management meetings
were held in January and February to arrange and carry
out a plot to destroy the Union by discharging employees,
using bad driving records as justification. As the organizing
drive began January 10, and the election petition was filed
on February 17, and as the discharges all occurred within
the next few weeks, following the plan described by Carter,
it is clear that the elements of animus, knowledge, and
timing of the discharges are all present.
But Respondent defends in two principal ways contend-
ing: (1) Carter is not credible, and (2) the insurance
situation was so acute that, even if the elements of an
8(a)(3) violation were present, the prima facie case was
rebutted by Respondent's overwhelming motive to correct
its insurance situation. While such an argument clearly
tends to undercut the General Counsel's reliance on
condonation of past transgressions as evidence of a
violation, it does not, in my view, withstand close scrutiny.
First, I see no reason to discredit either Chalen or Allene
Carter. It is true that they may have had reason to testify
contrary to Respondent's interest, but they candidly
admitted their biases and appeared to testify in a
straightforward and honest manner. Moreover, Chalen
Carter's description of Respondent's antiunion conduct
tracked the earlier blueprint Yates had described to
O'Shell. And, while Yates challenged O'Shell's recollection,
neither Yates nor Hopkins challenged Carter's assertion
that in the second week of February the company decided
to avoid unionization by discharging drivers with bad
records, and that they had decided that Ashley, Travello,
Dingee, Brannon, and Barnes were the principal organiz-
ers. Allene Carter even heard Yates tell Chalen Carter to
use the insurance companies as an excuse to fire the drivers
with bad records and asked him if he would testify to that
in court.
Moreover, they did not challenge Carter's testimony that
pursuant to instructions he destroyed Ashley's recently
acquired MVR or that he misled the Transport Indemnity
investigators with regard to the accuracy of the MVR's,
thus leading to the conclusion that the MVR's received in
evidence may also have been "managed"-at least insofar
"i Such questions are: 1. Why was Frieze fired 9 days before receipt of
his MVR? 2. Why was Rhone fired 4 days before receipt of his MVR?
3. Why was Williams' MVR not date-stamped? 4. Why did Respondent
need to request new MVR's of relatively new hires such as Dye and Smith?
Carter said he had obtained them at the times of their hire, only months
as to cause one to wonder what happened to some of the
MVR's Carter testified about. It should be noted that
Carter had been removed as Respondent's supervisor
sometime after the discharges. He was, therefore, not in a
position to explain why his testimony regarding the receipt
of the MVR's differed from the dates stamped on the
MVR's in evidence.
While a number of questions are raised by the MVR's,t6
in my view they need not be answered, for they are all
overridden when Respondent's defense is analyzed.
Yates knew in late 1975 that Respondent was going to be
faced with an insurance renewal problem. Respondent's
broker, Hall, had so warned him. As a result, according to
Yates, Respondent began modifying its equipment at a cost
of more than $1,800 per unit. Since Respondent had
approximately 40 trucks, simple arithmetic shows that such
a program would cost $72,000, not including the more
expensive tires.t 7 But since insurability rests primarily with
the quality of the driver, rather than with the quality of the
equipment, it appears to me that the expenditure to
upgrade the equipment was a futile act insofar as
insurability was concerned, although it may have made the
trucks more safe. Certainly a better way to retain
insurability would have been to upgrade the quality of the
drivers by getting rid of the ones which an insurance
company would consider bad risks, and hiring ones which
would be considered good risks. That Respondent did not
embark upon such a course in 1975 belies its claim that
such a course was more necessary in early 1976. In fact, in
late 1975 the accident rate was increasing and Respondent
knew it. Even without regard to its insurability problems,
good business would have required an immediate end to
that. Again, the best way to reduce accidents was to get rid
of high-risk drivers. Yet Respondent did not begin doing so
until after it knew of the union organizing campaign.
When, during the February insurance extension by
Travelers, three accidents occurred involving large losses
Respondent did not, even then, discharge any drivers for
that reason. It awaited the MVR's and when they arrived
only Dingee was fired, and he was a suspected union
leader. Surely by then, when the insurance renewal
problem was at its worst, Respondent would not have
waited for the MVR's. If it had truly been interested in its
insurability it is more likely that it would have summarily
fired all three.
Moreover, Yates' statement to Ashley, on March 16 at
the time of his discharge, that he did not know Ashley was
involved in any union activities, was false. Yates knew
Ashley was involved as early as January. This tends to
show that Respondent had a motive which it wished to
conceal.
Thus, I conclude that Respondent's advancing the
insurability/accident problem as reason for the discharges
is a pretext to hide its real motive-to avoid unionization of
the drivers. That some of the dischargees were not union
activists is of no moment, because, as Carter said: "if we
discharged the guys we thought had union activities on
before their discharge. 5. Why was Dye reinstated in July 1976? The 1973
DWI conviction was still on his record.
17 Although not litigated, I question whether the Michelin tires are
considered a better insurance risk than the Goodvears then in use.
1054
FRONTIER MARKETING COOPERATIVE
account of their bad-driving records and let other guys
work with bad-driving records, it wouldn't be right." Thus
it is clear that Respondent, in order to gut the Unions'
organizing drive, was willing to sacrifice drivers who were
not involved."'
With regard to Reubin Williams, however, I am unable
to find a violation. He was scheduled to be unlawfully
discharged on March 18. However, he did not show up for
work on that day or thereafter. There is no evidence that he
did not appear because he knew he was about to be
discharged, and I thus am unable to find that Respondent
constructively discharged him. It appears that he quit
before the axe fell. Accordingly, I find that Respondent
discharged all of those drivers alleged in the complaint,
except for Williams, in order to destroy the Unions'
organizing drive.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices by discharging eight of its line drivers in
order to avoid unionization and by coercively interrogating
employees regarding their union sentiments and desires, by
threatening to close the business in the event the drivers
chose to be represented by a union, by creating the
impression that the employees' union activities were under
surveillance, and by threatening to split up husband-and-
wife driving teams in the event the Union became the
drivers' collective-bargaining representative, I shall recom-
mend that it be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act. As Respondent, at the time of the
hearing, was not actively engaged in business, I shall
recommend that Respondent be ordered to place the eight
employees who were unlawfully discharged on a preferen-
tial hiring list in the event that Respondent resumes
business and to make each whole for any loss of pay he
may have suffered by reason of the discrimination against
him. In the event that Respondent has resumed its
business, I shall recommend that it be ordered immediately
to reinstate those employees with backpay. Backpay shall
be computed in accordance with the formulas set forth by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Moreover, as the unfair labor practices go to the
very heart of the Act, I shall recommend that the Board
issue a broad cease-and-desist order. See N.LR.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact and
according to the entire record in this case, I make the
following:
CONCLUSIONS OF LAW
I. The Respondent, Frontier Marketing Cooperative, is
an employer engaged in commerce and in an industry
m' See L. J. Wiliamns, d b aI.. J. KilliaxisLumber Co. ctal., 93 NI.RB
1672 (1951). enfd. 195 F.2d 669 (C.A. 4, 1952), cert. denied 344 U.S. 834
(1952). and Ontario Foods, Inc., 144 NLRB 1057 (1963).
"' 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.
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. General Teamsters, Warehousemen and Helpers
Union, Local 890, and Truckdrivers, Warehousemen and
Helpers, Local 898, both affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, are labor organizations within the
meaning of Section 2(5) of the Act.
3. Sammy Runnells is Respondent's supervisor as
defined in Section 2(11) of the Act.
4. By coercively interrogating employees regarding
their union activities, sentiments, and desires and regarding
the manner in which they would vote in an NLRB election,
by threatening to close the business in the event employees
obtained union representation, by creating the impression
among employees that their union activities were under
surveillance, and by telling employees that union represen-
tation would result in a splitup of husband-and-wife
driving teams, Respondent has engaged in unfair labor
practices within the meaning of Section 8(aX I) of the Act.
5. By discharging the following employees on the dates
listed opposite their names, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(l)
and (3) of the Act:
Roland Frieze
Percy Rhone
Charles Johnson
Thomas Dye
David Dingee
Russell O'Shell
James Smith
Willie (Gene) Ashley
February 11, 1976
February 16, 1976
February 24, 1976
February 26, 1976
February 26, 1976
February 24, 1976
March 17, 1976
March 16, 1976
6. On or about March 18, 1976, Reubin Williams
abandoned his employment with Respondent for unknown
reasons and accordingly Respondent has not engaged in
any unfair labor practice with regard to Williams' sever-
ance from employment.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the basis of 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:
ORDER '9
The Respondent, Frontier Marketing Cooperative,
Brawley and Montebello, California, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees regarding their union activi-
ties, sentiments, desires, or the manner in which they
intend to vote in a representation proceeding; threatening
to close the business in the event the employees choose
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 fior all purposes.
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union representation; creating the impression among
employees that their union activities are under surveil-
lance; and telling husband-and-wife driving teams that
they would be split up in the event a union becomes their
collective-bargaining representative.
(b) Discharging employees because they engaged in
union organizing activities and discharging employees in
order to avoid union representation.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) In the event that Respondent has resumed doing
business, offer the following employees immediate and full
reinstatement to their former jobs, without prejudice to
their seniority or other rights and privileges and make them
whole for lost earnings: Roland Frieze, Percy Rhone,
Charles Johnson, Thomas Dye, David Dingee, Russell
O'Shell, James Smith, and Willie (Gene) Ashley.
(b) In the event that Respondent has not resumed doing
business, immediately place the names of the employees
listed in paragraph 2(a) of this Order on a preferential
hiring list, and, in the event it resumes operations, offer
immediate and full reinstatement to said employees.
Copies of such list shall be provided to each named
employee and to the Unions. The employees shall be made
whole for earnings lost from the date of their discharges to
the date it is determined by compliance procedures that
Respondent ceased operating.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Montebello, Brawley, and Salinas,
California, places of business copies of the attached notice
marked "Appendix." 20 Copies of the notice, on forms to be
provided by the Regional Director for Region 21, after
being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(e) In the event that Respondent is no longer actively
engaged in business, in lieu of posting the notice marked
"Appendix" at the foregoing places of business, it shall
mail to each of its line drivers employed as of February 1,
1976, the approximate date of the first unfair labor
practice, a signed copy of said notice.
(f) Notify the Regional Director for Region 21, in
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges that Respondent unlawfully discharged
Reubin Williams.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
and we have been ordered to post this notice to our
employees.
The National Labor Relations Act, as amended, gives
all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity except
to the extent that the employees' bargaining
representative and employer have a collective-
bargaining agreement which imposes a lawful
requirement that employees become union mem-
bers.
WE WILL NOT interrogate our employees regarding
their union sympathies or desires nor will we ask them
if they intend to vote for or against union representa-
tion.
WE WILL NOT threaten to close our business in the
event our employees choose to be represented by a
union.
WE WILL NOT create the impression among our
employees that their union activities are under surveil-
lance.
WE WILL NOT tell husband-and-wife driving teams
that union representation will result in their being
unable to drive together as a team.
WE WILL NOT discharge employees in order to
prevent them from organizing a union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL place the following employees on a
preferential rehire list for the purpose of hiring them
first in the event we resume our business, and WE WILL
make each of them whole for any loss of earnings each
may have suffered by reason of our discrimination
against them:
Roland Frieze
Percy Rhone
Charles Johnson
Thomas Dye
David Dingee
Russell O'Shell
James Smith
Willie (Gene) Ashley
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FRONTIER MARKETING COOPERATIVE
All of our employees have the right to seek to be
represented by General Teamsters, Warehousemen and
Helpers Union. Local 890, and Truckdrivers, Warehouse-
men and Helpers Local Union 898, both affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor union.
FRONTIER MARKETING
COOPERATIVE
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