Gammon Trucking Co.

National Labor Relations Board - Board Decisions

Jun 4, 1973

203 N.L.R.B. 1136 (N.L.R.B. 1973)

1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herdis E. Gammon, a Sole Proprietor, d/b/a Gammon
Trucking Company and Delaino Underhill and
Richard D . Cundiff. Cases 25-CA-5024 and 25-
CA-5024-2
June 4, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On January 17, 1973, Administrative Law Judge
Ralph Winkler issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief , and the General Counsel filed
limited exceptions , a supporting brief, and 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, to the extent consis-
tent herewith.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(3) and (1) of the Act
by laying off and discharging employee Underhill be-
cause it suspected him to having sought union assist-
ance in obtaining contract wage rates applicable to
work then in progress.
Contrary to the Administrative Law Judge, we also
find that Respondent unlawfully discharged employ-
ee Cundiff, for the reasons set forth below.
Respondent is a trucking subcontractor on a con-
struction project at Sebree , Kentucky . At times herein
relevant, Respondent employed approximately 11
drivers on this project, including both Underhill and
Cundiff . The rates of pay applicable to employees
working on this project were set forth in a contract
between the Union and Associated General Contrac-
tors. Respondent is a party to this contract . However,
it is undisputed that, following execution of this con-
tract , Respondent continued to pay substantially less
than the rate required by the contract . Underhill com-
plained to the Union , seeking its assistance, in an
effort to obtain the higher rate required by the con-
tract . As a consequence , the Union protested to Re-
spondent the latter 's payment of the lower rate and
insisted that Respondent live up to its contract.
Credited testimony revealed that Respondent sus-
pected Underhill of having complained about the
contract wage rate violations and of "causing [Re-
spondent] troubles with the Union." The evidence
also reveals that Respondent threatened to take eco-
nomic reprisal against the troublemaker.
On November 1, 1972, following the Union's pro-
test, Respondent convened a jobsite meeting of its
drivers and advised them that Respondent would pay
the contract wage rate. However, these employees
were also told that Respondent would quit the project
if it could not obtain more money under its subcon-
tract or, alternatively, unless each employee refunded
to him $1 an hour of their wages. Subsequently, em-
ployees responded in various ways to the proposed
kickback. One employee, Fuquay, stated that he
would be willing to pay back $40 a week but only if
Respondent would arrange to have his paycheck show
his net salary after deducting the $40. Cundiff and
Underhill, however, were unequivocal in advising Re-
spondent that they would not refund an hourly
amount to Respondent. Cundiff did, however, offer to
return $10 or $15 a week to Respondent, as a form of
reimbursement for transportation furnished him to
and from the jobsite by Respondent.
As previously stated, the Administrative Law Judge
found that Respondent unlawfully discharged Under-
hill because of his suspected complicity in obtaining
enforcement of the contract wage provisions. With
respect to Cundiff, however, the Administrative Law
Judge found no evidence of an unlawful motive for
the layoff and termination. We disagree.
It is clear that of all of the employees canvassed
with respect to their willingness to refund wages
which Respondent would have to pay under the con-
tract, only Cundiff and Underhill flatly refused.
Cundiff's concession that he would repay Respondent
$10 or $15 per week to cover the latter's cost of his
transportation hardly demonstrates that Cundiff suc-
cumbed to Respondent's will with respect to the wage
controversy. On the contrary, Cundiff's response
clearly demonstrates his determination not to accept
a wage rate less than that required under the contract.
In this respect, Cundiff more closely identified him-
self with Underhill, in contrast to the other employees
who evidenced a willingness to go along with
Respondent's scheme. In these circumstances, the ra-
tionale concerning Underhill is equally applicable to
Cundiff, and in the absence of any credible evidence
that Cundiff was terminated for cause, we find that
Cundiff, like Underhill, was laid off and discharged
because of his union or concerted activity, in violation
of Section 8(a)(3) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
203 NLRB No. 173
GAMMON TRUCKING CO.
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Herdis E.
Gammon, a sole proprietor, d/b/a Gammon Truck-
ing Company, Chandler, Indiana, its agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"Offer to Delaino Underhill and Richard D. Cun-
diff immediate and full reinstatement to their former
jobs or, if these jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or other rights and privileges, and make Underhill
and Cundiff whole as set forth in "The Remedy" sec-
tion, above, for any loss of earnings suffered as a
result of the discrimination against them."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL reinstate and make whole Delaino Un-
derhill and Richard D. Cundiff for their earnings
lost since December 23, 1971.
I WILL NOT in any other manner discriminate
against employees for union reasons or because
they seek to enforce the wage or other provisions
of union contracts or because they otherwise ex-
ercise their rights under the Labor Management
Relations Act.
HERDIS E . GAMMON,
A SOLE PROPRIETOR,
D/B/A GAMMON TRUCKING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
1137
Street, Indianapolis, Indiana 46204, Telephone 317-
633-8921.
DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: Upon
charges filed by the above-named individuals on June 20
and 21, 1972, the General Counsel issued a complaint on
August 15, 1972, alleging violations of Section 8(a)(1) and
(3) of the Act. Respondent denies the commission of unfair
labor practices, and a hearing was held on September 21-22,
1972.
Upon the entire record of the case, including my observa-
tion of the demeanor of witnesses, and upon consideration
of briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is engaged in the trucking and cartage busi-
ness with his principal office and place of business in Chan-
dler, Indiana . Respondent's out-of-state revenue exceeds
$50,000 annually , and I find that he is engaged in commerce
within Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 215, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Union, is a labor organization within Section 2(5)
of the Act.
III THE UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent laid off
and discharged Delaino Underhill and Richard D. Cundiff
on or about December 23, 1971,1 because they sought to
implement wage provisions of Respondent's contract with
the Union. Respondent admits having taken such action but
denies that it did so for such alleged reason.
The locale of this case is the Anaconda Aluminum project
in Sebree, Kentucky, where Respondent was a trucking sub-
contractor for Industrial Contractors and Eichleay Corp. As
of December 23, Respondent had approximately 11 drivers
on this project, including alleged discriminatees Underhill
and Cundiff.
On September 1, Respondent became party to the
Union's collective-bargaining agreement with Associated
General Contractors. Although Respondent's Anaconda
operation was covered by this agreement Respondent paid
substantially less than the prescribed contract rate, even
after executing the contract. In the latter part of October,
Underhill made a telephone call to the home of Clifford
Arden, the union local president, and spoke with Arden's
wife. Without identifying himself, Underhill told Mrs. Ar-
1 All dates are in 1971 , unless otherwise stated.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
den that he was employed by Respondent at the Anaconda
project and was not receiving the union contract scale. Mrs.
Arden said she would report the conversation to her hus-
band. She apparently did, for on November 1 Arden ad-
vised Respondent, Herdis Gammon, that Respondent
would have to begin paying the contract rates on that job.
During the several months period before November 1,
Respondent had been aware that some of his employees had
been discussing their wage rates with Teamsters stewards
representing employees of other employers on the Anacon-
da job. Thus, Respondent employee, Dennis Myer, told
Gammon that he had discussed salary matters with Union
Steward Herman Cobb and Gammon replied that Myer
should not have informed Cobb of Respondent's actual
wage scale . Gammon went on to say that if Myer "was going
to tell everybody that it would turn around and ruin the job,
we'd ruin our job...... Employee Underhill also had simi-
lar conversations with Teamsters Steward Woodson. When
Underhill , either on his own or in response to Gammon's
interrogation, reported these conversations to Gammon,
Gammon told Underhill not to talk to the union steward
and that if Respondent "did have to pay Union wages he'd
take his trucks home and sell them or put them on other
jobs." Employee Richard Cundiff credibly testified that
Gammon had mentioned that he believed Underhill "was
causing his [Gammon 's] troubles with the Union," and
Gammon inquired of Cundiff concerning Underhill's con-
versations with Union Steward Woodson. Gammon told
Cundiff that "If he [Gammon] had to start paying union
wages, if the Union forced him to pay it he'd have to pull
his trucks out of the Anaconda job because hq couldn't
afford to pay it."
On November 1, following Arden's aforementioned call
to Respondent Gammon, the latter convened a jobsite
meeting of his drivers. Only Myer and Underhill were not
notified to attend. Respondent informed his employees at
this meeting that he was obliged to pay the contract wage
rate, and would do so, and that he would attempt to renego-
tiate a higher monetary return for himself in his own con-
tracts with Industrial Contractors and Eichleay Corp.
Respondent further advised his employees that he would
remove his trucks and pull out of the Anaconda job if he
did not get more money from his contractors or, alternative-
ly, unless each employee refunded to him a dollar an hour
of their wages.2
Later that day or within a day or two, Myer and Under-
hill asked Gammon why they weren't invited to the Novem-
ber 1 meeting. Gammon replied that he had heard that
either Myer or Underhill had been "squealing" to the Union
and that he would find out who it was and, when he did, he
would bring the individual back to Respondent's place of
business in Chandler and never work him again on a union
job.'
Respondent did renegotiate his own financial arrange-
ments on November 1, and that same day he began paying
2 Employees Gary Scott and Billie Fuquay credibly testified that they, not
Gammon , originally made the refund suggestion at this meeting to enable
Respondent to remain at the Anaconda project.
Myer left Respondent's employ in November, outside the 10 (b) period,
and his separation was not within the complaint
the contract rate on the Anaconda job. In early or mid-
November, employees Underhill, Cundiff, and Fuquay re-
quested a meeting with Gammon. Gammon and his son,
Eddie (who is employed by Respondent), 4 were present at
different times during the meeting. Cundiff and Underhill
told Gammon they would not refund an hourly dollar
amount to Gammon although Cundiff did offer to return
$10 or $15 weekly; Fuquay said he would be willing to pay
back $40 a week but only if Respondent would arrange to
have his paycheck show his net salary after deducting $40,
which Gammon said he could not do because the Union
would be checking Respondent's books to determine his
compliance with the contract rates.
No employee, so far as the record indicates, has ever
refunded any portion of his salary to Respondent.5
A. The Alleged Discrimination
Richard Cundiff was originally employed by Respondent
from June 1966 until he entered military service in Decem-
ber 1967. He was discharged from the Army in November
1970 and was recalled by Respondent in March 1971 and
began working on the Anaconda project several months
later where he continued until December 1971.
Delaino Underhill had worked for Respondent for 6
months in 1961, then from 1965 to 1966, and finally from
April 1969 until December 1971, the last 10 months on the
Anaconda job.
On December 14, 1971, Respondent transferred Cundiff
and Underhill from Eichleay Contractors to Industrial Con-
tractors. On or about December 23, Industrial in effect laid
off the two trucks regularly operated by Cundiff and Under-
hill and Respondent then laid off both men, stating lack of
work as the reason. Respondent did not recall either man,
and he hired new drivers in March 1972.
The General Counsel contends that Respondent termi-
nated Cundiff and Underhill because Underhill had called
the Union's attention to Respondent's contract infractions
and because both men insisted on the contract rate while
refusing to pay back any portion of their wages to Gammon.
Respondent claims that it selected Cundiff and Underhill
for layoff because, among all its drivers, they had the worst
performance records and caused unnecessary damage to
trucks and related equipment and that these factors, cou-
pled with subsequent threats and insubordinate remarks
made by them to Respondent, motivated Respondent to
discharge and refuse to rehire them.
Respondent switches men, as needed, between Eichleay
and Industrial Contractors on the Anaconda job, and, while
the Union contract purportedly does not require that layoffs
be made on a seniority basis, Respondent's admitted prac-
tice in layoff situations has been to retain senior men "as
near as I could without jeopardizing a job." The record
° Eddie Gammon is "in charge" in his father's absence I find that he is
a supervisor within Sec 2(11) of the Act and that his conduct at that meeting
is in any event imputable to Respondent in view of their collaborative action
on that occasion
5 At one time there had also been discussion of the employees reimbursing
Respondent for transportation furnished them to and from the jobsite Some
employees indicated their willingness to do so, however, Gammon declined
such offers and, so far as the record shows, no employee has actually paid
nor has Respondent accepted any monies in this connection
GAMMON TRUCKING CO.
further shows in this connection that Respondent had re-
tained Underhill as against newer employees in past layoffs
exceeding a few days.
Although it was not clear to me at the hearing that the
General Counsel was contesting Respondent 's claim that
Respondent had economic reasons for making any Decem-
ber layoffs, his brief does raise such contention; and I be-
lieve that Respondent also did not consider at the hearing
that his claim of "slack work" was being contested . In other
words , at the hearing I considered the issue to be one of
unlawful selection for layoff, rather than the layoff itself.
There is much testimony concerning the on-the-job per-
formance of Underhill and Cundiff. Claiming that both
men were his "worst " drivers, Respondent and his other
drivers testified in criticism of them in this regard, while
Underhill and Cundiff disagreed with the disparaging opin-
ions thus imputed to them. Gammon did testify that Under-
hill had been a "wonderful person" over the years but that
his "attitude and driving habits" had changed during the
summer and fall of 1971.
Gammon was asked on direct examination whether Un-
derhill had made any "accusations" or "threats" to him
after the layoff. "No, not bad ones," Gammon replied. Lat-
er he testified that he had heard "there had been a lot of
complaints [by Underhill] against me . . . running me down
pretty bad." Then Gammon testified that "A man's person-
al feelings for me, that means nothing to me ." Later he
testified to hearing about "threatening statements that had
been made by Mr. Underhill with regard to forcing [Gam-
mon] to take him [Underhill] back." Gammon then testified
that this and other purported name-calling remarks by Un-
derhill "form[ed] the foundation of his "determination" not
to recall Underhill. Early in his testimony Gammon stated
he would have recalled Underhill "if it hadn't been for some
of the conversations that happened afterwards." He later
testified, however, that he didn't believe he would have
taken Underhill back even if there had not been any "name-
calling."
B. Further Findings and Conclusions
Respondent is a financially marginal operator and he
might have been hard-pressed, if not unable, to continue on
the Anaconda project had he been required to pay the union
wage scale without either renegotiating his own arrange-
ments with Industrial Contractors and Eichleay or working
out some other alleviating alternative. Underhill played the
principal role in bringing about the union enforcement of
the contractual wage provisions and the record establishes
that Respondent did suspect that Underhill had "squealed"
to the Union. However, there is no substantial credible
showing that Respondent believed or suspected that Cun-
diff was similarly responsible .6 This leaves then only the
aforementioned meeting in early or mid-November when
Cundiff indicated he would refund some $10 or $15 but not
a dollar an hour. But Fuquay, in effect, said that he too
couldn't make arrangements for such payment, and the
matter had really been resolved by that time through
6 Cundiff had asked Gammon during the summer about payment of union
rates, but so did other employees.
1139
Respondent's renegotiation of his own contractual arrange-
ments. Indeed, no employee has made any wage refund to
Respondent . Even without relying on Respondent's credi-
ble version of his postlayoff conversations with Cundiff,7 I
find that the record does not preponderantly establish an
unlawful motive for Cundiff's layoff and termination.
Underhill's case is different. For whether or not any lay-
off was necessary, I find that Respondent did layoff and
terminate Underhill because he suspected that Underhill
had caused Respondent's "troubles" with the Union. In his
27 years in the trucking business, Respondent had previous-
ly discharged only three drivers, and no others in the last 11
years. Without detailing the conflicting testimonies con-
cerning Underhill's purported deficiencies or otherwise dis-
cussing the lack of probative value of Respondent's
testimony in this regard, it is noteworthy that Gammon
mentioned lack of work to him as the reason for the layoff,
that Gammon admittedly had never threatened to fire Un-
derhill for any of the purported incidents, and that Gam-
mon also admitted that the "only time" he had previously
laid any other employee off was for "more serious things
than these accidents or these incidents." For these reasons
and upon consideration of all other above-mentioned cir-
cumstances, I find that, when Respondent purportedly laid
off Underhill in December 1971, Respondent was actually
terminating his employment because Respondent knew or
suspected that Underhill had complained to the Union
about Respondent's contract derelictions.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce with
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By laying off and discharging Delaino Underhill be-
cause of his union or concerted activity, Respondent has
violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within Section 2(6) and (7) of the Act.
5. Respondent has not discriminated against Richard
Cundiff in violation of Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(3) and (1) of the
Act, I shall recommend that he cease and desist therefrom
and take certain affirmative action, including reinstating
and making whole Underhill, in order to effectuate the poli-
cies of the Act. All backpay computations shall be in accor-
dance with F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.8
Upon the foregoing findings, conclusions, and the entire
I also do not credit Cundiff 's testimony concerning postlayoff conversa-
tions with Gammon insofar as he purportedly referred to a "dollar an hour
back."
s The record indicates that Underhill was hospitalized during a portion of
the backpay period and that he may have become totally disabled. These
factors are germane to the backpay and reinstatement requirements herein,
and are therefore matters for consideration at the compliance stage of this
proceeding.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDERS
Respondent, Herdis E. Gammon, a sole proprietor d/b/a
Gammon Trucking Company, Chandler, Indiana, his
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise discriminating
against employees for seeking to enforce or implement
union contracts.
(b) In any other manner interfering with , restraining, or
coercing his employees in the exercise of their rights as
guaranteed by Section 7 of the Act.
2. Take the following affirmative action , which is neces-
sary to effectuate the policies of the Act.
(a) Offer to Delaino Underhill immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make Under-
9 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.
hill whole as set forth in the section above entitled "The
Remedy," for any loss of earnings suffered as a result of the
discrimination against him.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due and the right of rein-
statement under the terms of this Order.
(c) Post at his place of business at Chandler, Indiana, and
the Anaconda project in Sebree Kentucky, if he is still en-
gaged there, copies of the attached notice marked "Appen-
dix." 10 Copies of said notice, on forms provided by the
Regional Director for Region 25, after being duly signed by
Respondent, shall be posted by him immediately upon re-
ceipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Notify the Regional Director for Region 25, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
10 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 "