Gogin Trucking

National Labor Relations Board - Board Decisions

May 10, 1977

229 N.L.R.B. 529 (N.L.R.B. 1977)

GOGIN TRUCKING
Gerald G. Gogin d/b/a Gogin Trucking and Team-
sters "General" Local Union No. 200, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 30-CA-3523
May 10, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On November 24, 1976, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a brief in support thereof;
Respondent filed cross-exceptions and a supporting
brief; and the General Counsel filed a reply 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 2 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, Gerald G. Gogin
d/b/a Gogin Trucking, Milwaukee, Wisconsin, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
I The General Counsel and Respondent have excepted to certain
credibility findings 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
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
In sec. Ill. C. of his Decision, the Administrative Law Judge stated that
Respondent's owner, Gogin, initially met with his city dnvers on January
18, 1976, whereas the record clearly indicates that such meeting was held on
January 20, 1976. This apparently inadvertent error. however, is insufficient
to affect the results herein.
2 Respondent has excepted to the Administrative Law Judge's conclu-
sion that it violated Sec. 8(a)l) by interrogating employee Scutchfield on
the ground, inter alia, that such a violation was not alleged in the complaint.
We find this exception without merit. Although the complaint did not
specifically, allege such a violation, the issue was fully litigated at the hearing
and the record fully supports the Administrative Law Judge's conclusions.
Accordingly. we adopt the Administrative Law Judge's finding of a
violation in this regard.
We agree with the Administrative Law Judge's conclusions that
Respondent violated Sec. 8(aXS) and (1) by refusing to meet and bargain
with the Union after extending recognition to it and. subsequently, by
229 NLRB No. 18
withdrawing such recognition. We therefore find it unnecessary to pass or
rely on the Administrative Law Judge's additional conclusion that a
bargaining order herein also would be warranted under N.L. R.B v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969).
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on May 24 and 25 and June 28, 29,
and 30, 1976, at Milwaukee, Wisconsin, pursuant to a
charge filed by Teamsters "General" Local Union No. 200,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter referred to as the Union, on February 18, 1976,
which was served on Respondent by registered mail on the
same date; an amended charge filed by the Union on
March 10, 1976, which was served on Respondent by
registered mail on the same date; a complaint and notice of
hearing issued by the Regional Director for Region 30 of
the National Labor Relations Board on March 30, 1976,
which was thereafter duly served on Respondent and an
amendment to the complaint by the same Regional
Director on May 19, 1976, which was also duly served on
Respondent. The complaint, as amended, alleges that
Respondent violated Section 8(a)(1) of the Act by threaten-
ing to terminate its over-the-road trucking operations if its
over-the-road truckdrivers become unionized and by
interrogating an employee as to whether or not he signed a
union card; that Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Daniel Hawver on or about
February 2, 1976, by laying off Robert Laise on or about
February 4, 1976, and, after recalling Laise, by discharging
him on May 14, 1976, all such discharges and the layoff
allegedly being because of the union activity of the
employee claimed to be discriminated against; and that
Respondent violated Section 8(aX5) and (1) of the Act by
refusing, on and since January 26, 1976, to bargain with the
Union as the exclusive bargaining representative of
Respondent's employees in an appropriate unit of truckdri-
vers. In its answer to the complaint, which was also duly
served or amended on the record at the hearing, Respon-
dent has denied the commission of any unfair labor
practices.
For reasons which appear hereinafter I find and
conclude that Respondent has violated the Act essentially
as alleged in the complaint with the exception of the
ultimate discharge of Laise, which I conclude was for
cause.
At the hearing the General Counsel and Respondent
were represented by counsel. The parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. The parties waived
oral argument at the conclusion of the hearing. Subsequent
to the hearing, the General Counsel and Respondent have
submitted excellent briefs which have been considered.
529
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record I in this case including the briefs
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Respondent was, until April 1, 1976, a sole proprietor-
ship. On and since that date it has been incorporated.
Respondent is engaged in the business of a contract carrier
of glass and other products from its terminals in Milwau-
kee, Wisconsin.
During the course of the calendar year preceding the
issuance of the complaint, a representative period, Respon-
dent sold trucking services valued in excess of $50,000
directly to customers located outside the State of Wiscon-
sin. During the same period of time, Respondent pur-
chased goods valued in excess of $50,000 from firms
located within the State of Wisconsin which, in turn,
purchased those goods directly from points located outside
the State of Wisconsin.
The complaint alleges, the answer admits, and I find that
at all times material herein Respondent is and has been an
employer, as defined in Section 2(2) of the Act, engaged in
commerce and in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
at all times material herein the Union has been and is now
a labor organization within the meaning of Section 2(5) of
the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Hierarchy
The complaint alleges, the answer admits, the parties
stipulated, and I find that the following individuals listed
below occupied the positions set opposite their names, and
at all pertinent times herein (with the exception noted as to
Balistreri) were supervisors within the meaning of Section
2(11) of the Act.
Gerald G. Gogin
James Pope
Daniel Balistreri
Mark Paulbicke
Dave Schneider
Owner
General Manager
Dispatcher 2
Dispatcher
Dispatcher
The General Counsel further contends, inter alia, that
James Fay is a supervisor within the meaning of Section
2(11) of the Act. I agree.
Fay, who works part time, is a weekend dispatcher and is
salaried like other dispatchers (whereas the drivers and
mechanics are hourly paid). Fay, in his dispatching duties,
has the authority to call men in to work on weekends if the
need arises and may send a man home if he is not
I Certain errors in the transcript have been noted and are hereby
corrected.
2 Until March 1976 when he became a truckdriver.
performing his job.3 This combination of authority places
him in substantial control of Respondent's operations
when he is engaged as a dispatcher on weekends.
While Fay also may perform local truckdriving duties on
weekends and unload trucks by hand during the middle of
the week, I find, on the basis of his authority as a weekend
dispatcher, that he regularly has the authority to assign
employees and to discipline them in a manner requiring the
exercise of independent judgment and that he is therefore a
supervisor within the meaning of Section 2(11) of the Act.
B. Some Details in Respect to Respondent's
Business Operations
Respondent is primarily engaged in local cartage
operations in the vicinity of Milwaukee, Wisconsin, but it
also handles interstate pickups and deliveries in Illinois and
Wisconsin on its own authority or the authority of its
customers. Shipping on the customer's authority is called a
trip lease. It derives most of its revenues from the shipment
of glass products (largely new empty beer bottles) manu-
factured by Midland Glass. Britton Motor Service and
Dart Transport bring the bottles in trucks to Respondent's
First Street (Milwaukee) yard. Respondent's local or city
drivers then haul these trailers to the Pabst, Schlitz, and
Miller breweries in Milwaukee, unload the bottles and
bring the empty trailers back to Respondent's yard.
Respondent has also hauled outbound cases of beer
sometimes on piggyback trailers for the Chicago North
Western Rail Company (hereinafter the CNW Railroad).
Another source of revenue to Respondent is the hauling of
damaged pallets from the breweries to a firm named
Reclaimed Pallets which repairs them.
Respondent maintains a garage and office at Flagg Street
in Milwaukee some 14 miles from the First Street location.
C. Sequence of Events
Prior to January 1976, it does not appear that Respon-
dent's employees were represented by any labor organiza-
tion.
In the middle of January 1976, 4 a driver from Respon-
dent attempted to deliver a load of bottles to the Pabst
brewery but was told that Respondent was not going to be
permitted to pull in or out of Pabst Brewery (as it had been
doing prior to that time). On hearing this, dispatcher
Paulbicke telephoned Pinzer, Pabst's warehouse supervisor.
Pinzer told Paulbicke that Pinzer had instructions not to
handle any Midland glass (which Respondent delivered to
Pabst) because of a union problem. Pinzer spoke with
Paulbicke again later and told Paulbicke that Respondent
had been replaced by Donahue, a carrier which was union.
Paulbicke then contacted Gerald Gogin and advised
Gogin what had occurred. Gogin contacted a representa-
tive of Midland Glass who confirmed what Paulbicke had
told Gogin. Gogin also learned at this time that Respon-
dent could no longer make deliveries for the CNW
Railroad.
3 Gerald Gogin so admitted.
4 All dates appearing hereinafter occurred in 1976 unless otherwise
noted.
530
GOGIN TRUCKING
Distressed over this loss of business, Gogin contacted his
general attorney, Hauer, who is not a specialist in labor
relations, and outlined the problem. Hauer, in turn,
contacted Mike Ropella, a labor specialist, who advised,
inter alia, that Gogin should discuss the matter with his
employees.
Hauer relayed these instructions to Gogin who called a
meeting of his city drivers on January 18. Present at the
meeting for management were Gogin, James Pope, Donald
Knaak (Respondent's bookkeeper), and Balistreri (then
still a dispatcher). The city drivers in attendance were Ken
Doughty, Bob Jennings, Mike Downey, Dan Hebert, Bob
Laise, Dave Schultz, and Jay Gogin (Gogin's son). No
over-the-road drivers were present.
Gogin began the meeting by advising the employees that
Respondent had been shut out of Pabst and CNW
Railroad, apparently because of Respondent's nonunion
status. He then asked the employees their opinion. Laise
asked if "the Union" would talk to the employees. To this
Gogin responded by outlining his understanding of what
the employees could do if they were interested in joining a
union. He said they could sign a petition for the Union to
talk to them. The Union would then speak with the
employees and put the matter to a vote. The pros and cons
of joining a union and its effect on business opportunities
were then discussed. In this discussion Gogin made it clear
that the choice of joining or not joining a union was up to
the employees.
Because Gogin had to take a phone call in the middle of
this meeting the employees left the office and repaired to
Respondent's shop where they continued the conversation.
At this time they decided to contact the Charging Party,
the Union herein.
After Gogin's call was completed the employees returned
to the office and told Gogin of their intention to send a
petition to the Union. A petition was then typed by
Balistreri (using the ideas of the employees). It was also
signed by them and given to Laise to be mailed to the
Union. The petition stated, "We would be interested in
information on what your organization has to offer us."
Laise was selected to handle the matter and to talk with
the Union later because he worked nights and would be
available to speak to the Union during the day.5
On January 23, Laise went to the Union's office where he
met with Raymond Fularczyk, the Union's business agent.
Laise advised Fularczyk that Laise represented Respon-
dent's drivers and that the drivers would like to be
"recognized." Fularczyk gave Laise authorization cards
and told Laise to have the drivers fill them out. When Laise
told Fularczyk that Respondent also employed over-the-
road truckdrivers, Fularczyk suggested that they too be
signed up.6
5 The findings as to what occurred at the meeting are based on a
composite of the testimony of all the witnesses who testified in respect to the
meeting and particularly the notes Balistreri made as to what transpired
when the meeting was going on.
6 These findings are based on the credible and generally corroborative
testimony of Laise and Fularczyk in this regard except as to the date which
is based on the testimony of Laise, who was more certain on the point than
was Fularczyk.
7 The findings as to this incident are based on the credible testimony of
Scutchfield in this regard as admitted by Gogin. Respondent concedes the
On that same day, January 23, Laise went to Respon-
dent's Flagg Street office where he encountered Gerald
Gogin and Balistreri. Gogin asked Laise if Laise had been
to the union hall. Laise responded that Laise had just
returned, was in possession of authorization cards for the
drivers to sign, and wished to have a meeting with them.
Gogin told Laise that Gogin could use the First Street
office for this purpose. Laise then took a tractor to First
Street where he asked Fay for the telephone numbers of
both city and over-the-road drivers. Fay gave Laise the
numbers for the city drivers but told Laise that Laise would
have to get the numbers for the over-the-road drivers from
the Flagg Street office. Laise telephoned Gerald Gogin at
the latter location and asked for these numbers. Gogin
advised Laise that the over-the-road drivers didn't have
anything to say about the Union and that it was only for
the city drivers.
On the evening of January 23, Laise gave a union
authorization card to Stacey Scutchfield, an over-the-road
driver, who executed it in Laise's presence and returned it
to Laise. Fay was nearby when this solicitation and card
signing took place.
After giving his completed card to Laise, Scutchfield
went to the Flagg Street office where he was met by Gerald
Gogin. Gogin told Scutchfield that he had heard that
Scutchfield had been approached and he asked if this was
true. Gogin advised Scutchfield that there was no way that
his over-the-road drivers would be allowed to go union.
Gogin stated he would sell his trucks before he would allow
it. Gogin also said that he would transfer Scutchfield to the
city operation if this occurred.7 Still later that same evening
Laise gave an authorization card to Les Phillips, another
over-the-road driver, who executed the card and returned it
to Laise at that time.
Also during that evening Gerald Gogin telephoned Dan
Hawver, another over-the-road driver at the latter's home.
Gogin said he had consulted his lawyer and that he knew
what he was going to say was wrong but he was going to
say it anyway. Gogin then related to Hawver that there was
no way Gogin's over-the-road operations were going union,
that they were separate from the city operations, and that
he would fire his drivers and hire brokers to pull freight.
Hawver responded by telling Gogin that he would not vote
for the Union because of a favor Gogin had done for him
previously. Gogin assured Hawver that if the over-the-road
operation was eliminated Hawver would be transferred to a
city driving job.8
However, after Hawver discussed the matter with his
wife, Hawver changed his mind about "voting" for the
Union.
On the next morning, January 24, Laise met with Hawver
and Scutchfield and various city drivers at a local
restaurant. Laise advised those present that the cards
credibility of Scutchfield in its brief. I concur and will credit his testimony
throughout this Decision. He testified in a straightforward. exemplary
manner. He is also disinterested in the outcome of these proceedings to the
extent that he is no longer employed by Respondent - having resigned to
take a better job prior to the hearing.
s These findings are based on the credible testimony of Hawver in this
regard, as essentially admitted or not denied by Gogin. Respondent's threat
to employees on January 23 that it would shut down its over-the-road
operations, if they became unionized. is alleged as a violation of Sec. 8(a)(l).
531
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be signed by anyone interested in being represented
by the Union or being "recognized" by the Union. Each
card indicates that the purpose of the card is to authorize
the Union to be the employees' bargaining representative.9
At this meeting Laise himself, Hawver, Robert Jennings,
John Irwin, Michael Downey, and David Schultz signed
authorization cards, Laise retaining his completed card and
the others returning theirs to him at the same meeting. All
the signers were city drivers except Hawver.
After separate solicitations on January 26 city drivers
Ken Doughty and D,anny Hebert signed cards in Laise's
presence and returned them to him on the same day.
Also on January 26 Laise took all of the foregoing
executed union authorization cards to the union hall and
gave them to Fularczyk. Fularczyk told Laise that the
Union would send a letter to Respondent advising it that
the Union represented a majority of the employees and
would sit down to bargain.
On January 26, the Union did indeed send a letter to
Respondent. This letter was mailed by registered mail and
the receipt was signed by Gogin's son on January 27. The
letter informed Respondent that the Union represented a
majority of Respondent's employees and went on to
demand recognition in a unit of drivers excluding "office
clerical, salesmen, guards and supervisors." The letter
requested that Gerald Gogin meet with Respondent on
January 29 for the purpose of negotiations but that if such
date proved inconvenient the Union desired to be notified
so that another date could be agreed upon. The Union
offered Respondent the opportunity to have a neutral
person check the Union's authorization cards at the time of
the meeting for the purpose of verifying the Union's
majority status. The letter was signed by Fularczyk on
behalf of the Union.
On January 28 Hauer, Respondent's general attorney,
telephoned Fularczyk. Hauer told Fularczyk that Gogin
had told Hauer to take the necessary steps, that Respon-
dent recognized the Union but that neither Gogin nor
Hauer would be available on January 29. Fularczyk
pressed Hauer for a prompt meeting but Hauer said he had
9 These findings are based on the testimony of Laise as essentially
corroborated by Hawver. I will comment later on the credibility of Hawver.
I do not credit the unsure and uncorroborated testimony of Downey that
Laise told the employees he did not think that signing the cards meant the
employees were going union but the cards were just to see what the Union
had to offer "or something to that effect."
" These findings are based upon the credible testimony of Fularczyk in
this regard as partially corroborated or not denied by Hauer. In its brief
Respondent attacked the credibility of Fularczyk based on what Respon-
dent describes as Fularczyk's condescending demeanor and the excitability
and irritability he demonstrated on the stand. Much of what Respondent
says about Fularczyk's demeanor while testifying is true. However, in all the
circumstances. I nonetheless credit Fularczyk. These circumstances include
not only the immediate subsequent exchange of letters between Hauer and
Fularczyk but a full evaluation of the testimony of Hauer in respect to the
matter of Respondent's recognition of the Union.
Hauer began his testimony in this regard by hedging - saying that he
had a mental reservation in dealing with a person of this type (meaning
Fularczyk). Hauer admitted that he said he would be handling any
negotiations which would take place. He also admitted asking for contracts
to be sent to him by the Union. Significantly he did not deny Fularczyk's
assertion that he, Hauer, said that Respondent "recognized" the Union -
he merely said he could not recall any such conversation. This, of course,
creates no credibility issue on this specific point.
Further, while Hauer claimed that he did not see and was not aware of
Fularczyk's letter of January 26 (in which the recognition demand was
to be in Washington, D.C. Fularczyk accepted this
explanation and advised that he would send Hauer a letter
verifying the telephone conversation. Hauer also asked
Fularczyk for contracts during this telephone call.10
On January 28, Fularczyk sent Hauer a letter enclosing
copies of union contracts and explaining that this was
being done inasmuch "as you [Hauer] have explained to us
that you are the representative who will be negotiating the
labor contract on behalf of Gogin Trucking." The letter
added that negotiations would take place in the union
office on February 6.
Also on January 28 Hauer sent a letter to the Union to
Fularczyk's attention saying "this will confirm that I will
be negotiating the contract for Gogin Trucking." Hauer's
letter added that Hauer would call on February 6 to
arrange a time to meet that day.
On January 29 Hawver and Scutchfield went to Respon-
dent's Flagg Street office where they were confronted by
Gerald Gogin, Balistreri, and Pope. Gogin asked Hawver if
Hawver had signed a union authorization card. Hawver
admitted that he had. Gogin then left."
On January 30, Laise had a dispute with Fay and Pope
over Respondent's ability to respond to requests for service
on that day. Pope criticized Laise on this occasion for a
poor work attitude.
On February 2 Hawver was discharged by Gerald Gogin.
His discharge is alleged to be a violation of Section 8(a)(1)
and (3) of the Act.
Respondent did not meet with the Union on February 6
to negotiate a contract as the Union had requested in its
letter of January 28.
On February 6, Laise was sent a letter by Pope advising
Laise that Laise was being laid off effective February 4
"due to lack of businees." This layoff is alleged by the
complaint to be violative of Section 8(a)(1) and (3) of the
Act.
On or about February 9, Respondent resumed making
deliveries to Pabst.
made) until long after these events, I conclude that he had been apprised of
the contents of the letter. For he did not deny Fularczyk's testimony that he,
Hauer, stated in the telephone conversation that neither he nor Gogin would
be available on January 29 - the date on which the letter had requested a
meeting. Hauer also admitted that he told Fularczyk, as Fularczyk stated,
that Hauer would be making a trip to Washington. It is likewise noteworthy
that Hauer called Fularczyk (the signer of the Union's January 26 letter)
and no other representative of the Union, yet there is no indication in this
record that Fularczyk had previously been identified to Hauer, who, as I
have found, is not a labor lawyer. The exchange of letters on January 28 -
which will be described and which confirms the telephone call of that date
-- are also consistent with Fularczyk's testimony. Thus both Fularczyk's
letter and Hauer's note that Hauer would negotiate the contract for
Respondent. Neither letter qualifies Hauer's appearance in that role on the
condition "if' such negotiations ever occurred - a condition Hauer claimed
he averred in the telephone conversation.
Finally, since Hauer's letter of January 28 conceded that "I [Hauer] will
be negotiating the contract" for Respondent and inasmuch as recognition is
the logical and necessary prerequisite to labor negotiations. I conclude that
Hauer did indeed tell Fularczyk in the instant telephone conversation that
Respondent was recognizing the Union.
My finding as to the date of the telephone conversation accords with the
date of the confirmation letters.
" These findings are based on the credible testimony of Hawver in this
regard, as corroborated by Scutchfield and admitted by Gogin.
This incident is alleged by the complaint to be a violation of Sec. 8(a)(1).
532
GOGIN TRUCKING
On or about February I I Gerald Gogin consulted a new
attorney, Russ R. Mueller, who later represented him in
these proceedings.
Again on or about February 11, Gogin held a meeting of
his city drivers which was also attended by over-the-road
driver Scutchfield. Gogin told those present that he was
having monetary or labor problems and that he wanted
everyone to do what he felt was right. Gogin stated that if
the employees wanted a union, he would negotiate with it.
He also said he was behind them 100 percent if they didn't
want a union. He continued that he was about to hire an
attorney to handle the matter. Mark Paulbicke, who was in
attendance, stated that the employees would ultimately
have the opportunity to vote by secret ballot whether or
not they wanted a union. Scutchfield then asked Gogin
what would happen if the employees went on strike. Gogin
stated that the Company would continue operations and
the striker would no longer be considered an employee.
Jennings, a driver, asked Gogin what would happen if the
employees did not go union. Gogin replied that he and
Pope had been working on new rules and regulations for
the Company but had set the matter aside when the union
problem arose. The content of these new "rules and
regulations" was not specified. Gogin further stated that,
after that night, there would be no further over-the-road
operations and that the over-the-road drivers would be
incorporated into the city.'2
Scutchfield, who had been an over-the-road driver prior
to February 12, then went on city duties including
unloading by hand at Pabst. He later resumed over-the-
road duties in March.
On February 12 Mueller wrote Fularczyk a letter in
which Mueller advised that he had been retained by
Respondent. Mueller's letter noted that Mueller was in
possession of the Union's (above-mentioned) letter of
January 28, in which the Union "implicitly" stated that it
had been recognized by Respondent. Mueller's letter
commented that the Company had not voluntarily extend-
ed recognition to the Union as the "legitimate and
authorized bargaining agency for the Company's employ-
ees." Mueller's letter concluded that in view of the Union's
instant letter Respondent would be filing a petition for an
NLRB-conducted secret ballot election with the Regional
Office.
The complaint alleges that Respondent, in violation of
Section 8(a)(l) and (5) of the Act has refused to bargain
with the Union since January 26 and that, after granting
recognition on January 28, Respondent has refused to
honor that recognition.
An election petition was mailed by Mueller to the
Regional Director on February 12, being received on
February 13 and docketed as Case 30-RM-349. This
petition was later dismissed by the Regional Director in a
letter dated April 2 because of the blocking 8(a)(l) and (5)
charge (in the present unfair labor practice case), which
was filed by the Union on February 18. On April 14
Respondent filed a request for review of the dismissal by
12 These findings are based on the credible testimony of Scutchfield in
this regard, as corroborated or not denied b) Gerald Gogin.
13 These findings are based on the credible and undisputed testimony of
Laise and Scutchfield in this regard.
the Regional Director of Respondent's petition. The Board
denied the request for review on April 28.
Meanwhile, on March 12, Laise telephoned Pope about
returning to work.
On March 15 Laise met with Gerald Gogin and Pope. In
this meeting Laise was told he would be recalled to work
performing unloading by hand at Pabst. This meeting
proved to be acrimonious and Respondent warned Laise
about his attitude. He began working the next day.
On March 22 Laise returned to local truckdriving duties.
In April a meeting occurred at Respondent's First Street
location between the city drivers and Gerald Gogin. Also
present were Pope and dispatcher Schneider. Gogin stated
he was apprehensive about the Union. He said that drivers
had come to him saying that they did not realize what they
were signing when they executed their union authorization
cards. He said one employee was leading the rest around
by the nose. Laise asked if this meant himself and Gogin
responded "if the shoe fits" whereas Pope came right out
and accused Laise of leading the drivers around. The
drivers then presented a list of their own demands in lieu of
a union contract. Pope took the list and said that he would
show it to Respondent's attorney. Gogin also stated that he
heard there would be a meeting of the drivers with the
Union that evening and he urged them to attend 100
percent.t 3 It does not appear that Respondent took any
action in response to the employees' list of demands.
On that same evening in April a meeting was held at the
union hall between Jerry Sprague for the Union and
Respondent's city drivers. Sprague asked several questions
about the earnings of the drivers. Sprague also inquired as
to the drivers' disposition to strike Respondent in order to
get it to the bargaining table. No driver stated his
agreement with this proposal. All of the drivers except
Laise asked to have their union authorization cards
withdrawn from the Union's pile. They were withdrawn
and set aside, but were not returned.' 4
After the meeting the drivers walked outside and
discussed what had happened. The consensus was that, if
Gogin did not respond to the demands they had presented
him earlier that day, they could always go back to the
Union.
Near the end of April, Pope and Gogin met with Laise to
discuss with him complaints received from Pabst and
Reclaim Pallets about Laise's work. Pope warned Laise
about the recurrence of any such complaints. Laise assured
Pope and Gogin that Laise wanted to keep his job with
Respondent.' 5
On or about April 29 Laise asked for a leave of absence
from Respondent but no determination was made at that
time because Pope said he wished to speak to Respondent's
attorney. Laise then went to work for a different company,
Ristow Trucking.
On May 6 Pope denied Laise's request for a leave of
absence and asked Laise at the same time whether Laise
was working for Respondent or Ristow. Laise responded
14 These findings are based on a composite of the testimony of Laise.
Downey, and Hebert in this regard. Sprague did not testify.
1i These findings are based on a composite of the testimony of Laise and
Pope in this regard.
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would work for whichever company called him
first.
On May 10 Laise quit his job at Ristow.
Over the night of May 12-13 Laise worked for Respon-
dent taking trailers to Pabst to be loaded with full beer
bottles. Pabst complained to Respondent about his
conduct on that evening - a complaint which will be
discussed more fully in my concluding findings.
On May 14 Pope discharged Laise in the presence of
Gogin. Laise's discharge is alleged to be a violation of
Section 8(a)(3) and (1).
Concluding Findings
The Alleged Independent Section 8(a)(l) violations
As I have found, Gerald Gogin told Hawver in a
telephone call on January 23 that there was no way that
Gogin's over-the-road operations would be unionized and
that Gogin would shut them down before he permitted it.
In this atmosphere of coercion Gogin, as I have further
found, asked Hawver on January 29 if Hawver had signed
an authorization card.
Respondent defends that Gogin's foregoing interrogation
of Hawver could not be considered coercive because
Respondent purportedly favored the Union and Hawver
had been promised a city job if the over-the-road
operations were eliminated.
I reject these contentions. For Respondent clearly
opposed the unionization of its over-the-road drivers - of
whom Hawver was then one - and the promise to find a
job for Hawver was given after Hawver assured Gogin that
Hawver would not support the Union. Gogin learned that
Hawver reneged on this promise when Gogin interrogated
Hawver.
As I have further found, Gogin, on January 23, asked
Scutchfield if he had been approached. In this same
conversation Gogin told Scutchfield, as he had told
Hawver, that he would shut down its over-the-road
operations before it would permit them to become union.
While Gogin promised to transfer Scutchfield to the city
operation when the shutdown occurred Gogin did not offer
to continue Scutchfield's over-the-road wages nor assure
him that no other harm would be visited upon him for
joining the Union (indeed Scutchfield, who was later
transferred to city work in February, still later in March
asked to be returned to over-the-road driving for monetary
reasons).16 Nor was any assurance given to Scutchfield that
another over-the-road driver, Phillips, would be retained.
In all these circumstances, I conclude that Gogin
coercively interrogated Scutchfield on January 23 and
Hawver on January 29 in each instance in violation of
Section 8(a)(l) of the Act. I further conclude that by
threatening both Hawver and Scutchfield on January 23
that Respondent would close down its over-the-road
16 According to Scutchfield's credible and unrebutted testimony.
1? The General Counsel argues that I should find a further violation of
Sec. 8(a)( ) on the basis of what he says were Gogin's promises of benefit to
employees at a company-employee meeting (apparently the one of February
II), although no such allegation appears in the complaint. The General
Counsel further urges that this matter was fully litigated. I do not agree that
operations before letting them go union, Respondent
further violated Section 8(a)(l) of the Act.' 7
The Discharge of Hawver
Hawver was terminated by Respondent on February 2.
Hawver, who had been employed by Respondent since
February 1972, was its oldest over-the-road driver in terms
of service at the time of his discharge - although Phillips
had been employed in both city driving and over-the-road
for a longer period.
Hawver, it may be recalled, was told by Gogin on
January 23 that Gogin would shut down the over-the-road
operations if they became unionized. In response to this
threat Hawver at the time promised Gogin that Hawver
would not join the Union because Gogin had done Hawver
a favor in the past. Hawver changed his mind, however,
and signed a union authorization card on January 24, a
matter of which Gogin learned when Gogin interrogated
Hawver on January 29. Hawver's discharge, on February 2,
came at about the same time as Scutchfield, another over-
the-road driver, was transferred to city driving duties (on
February 11).
Respondent defends that it discharged Hawver on
February 2 because of a complaint Respondent received on
Hawver from Norlander, the terminal manager of Britton
Motor Service about the way Hawver had acted in early
January when Hawver had made a delivery at Brockway
Glass on a Respondent trip lease for Britton. This matter,
according to Respondent, came to the attention of
Balistreri, when Balistreri spoke with Norlander in an
attempt to drum up some trip lease business with Britton.
Norlander refused such new business because, he said,
Brockway had cut out Britton by reason of the Hawver
incident. After Balistreri reported Norlander's comments
to Gerald Gogin, Gogin discharged Hawver.
I reject this defense.
Hawver, according to his undisputed testimony had
arrived at Brockway about 5 or 5:30 p.m. about January 12
or 14. A dispute arose about Hawver getting unloaded
because the employees had left for the day to go bowling.
Hawver called Pope, who asked Hawver to see if he could
get unloaded and to call back when the matter was
decided. The employees returned from the bowling alley
and Hawver was unloaded about a half hour later and
Hawver telephoned this information back to Respondent
(Hawver spoke to Knaak, the bookkeeper).
Norlander admitted that he reported the incident to
Gogin and Balistreri on January 14.
While the matter may have come up again when
Balistreri tried to drum up business on January 30, it had
already been reported on January 14 but no action was
taken against Hawver at that time. Significantly, between
January 14 and 30, Hawver, an over-the-road driver, had
joined the Union against Gogin's wishes and contrary to
his promise to Gogin.
it was fully litigated. But even if I did, there is no showing that the "new
rules and regulations," which Gogin mentioned at that meeting and said he
had been working on for Respondent until the union issue arose, would
indeed have worked any beneficial change in the employees' working
conditions.
534
GOGIN TRUCKING
It is true, of course, that Respondent did not get any
more trip lease business from Britton for a time. However,
it is also true that Gogin, as he admitted at the hearing,
never checked Hawver's story with Brockway Glass.
Gogin's failure to do so when the incident occurred
indicates that the matter was then of little concern to him.
His subsequent failure to check the story on or about
January 30 suggests that he was seizing it as a pretext upon
which to discharge Hawver where the real reason lay
elsewhere. Moreover, if Gogin had talked to Brockway,
Respondent and Britton may well have returned to
Brockway's good graces - assuming they lost them. For
after the Board agent interviewed personnel of Brockway,
Brockway began to give Britton business again and
Britton, in turn, gave one trip lease to Respondent.1 8
Britton in any event has continued at all times to use
Respondent for local cartage work except for the Pabst
interruption in late January and early February, heretofore
described.
I conclude from the foregoing that the true motivation
behind Gogin's discharge of Hawver was the fact that
Hawver had joined the Union. I further conclude that by
terminating Hawver for this reason Respondent violated
Section 8(a)(l) and (3) of the Act. '9
The Layoff of Laise
Laise was hired on October 7, 1975, as a city driver and
he worked in that capacity until he was laid off on
February 6, 1976, effective February 4.
Laise's union activities were hardly a secret to Gerald
Gogin. Laise was commissioned by his fellow employees in
the presence of Gogin on January 20 to be their emissary to
the Union to inquire what it could do for them. This
function and Laise's later efforts to organize the city
drivers were not opposed by Gogin. What was opposed was
Laise's successful organization of the over-the-road truck-
ers as well. Gerald Gogin told Laise in a telephone call on
January 23 that the over-the-road drivers would not be
organized but that only the city drivers would. He told
Hawver and Scutchfield - both over-the-road drivers -
that same day that he would shut down his over-the-road
operation before he would permit it to be organized.
However, he learned from Scutchfield, on January 23, and
from Hawver, on January 29, that both had joined the
Union. Laise's successful solicitation of Scutchfield on
January 23 was witnessed by Fay, whom I have found to
be a supervisor within the meaning of the Act.
According to Respondent, Laise was laid off for
economic reasons due to the temporary loss of the Pabst
business (which would have given work to at least two
5R Norlander credibly so testified.
19 In its brief, Respondent attacks the credibility of Hawver on the basis
of certain claimed discrepancies in his affidavit. In one instance, dealing the
Gogin's interrogation of Hawver, Hawver testified at first that Gogin asked
him if he signed an authonzation card, whereas the affidavit stated that
Gogin asked Hawver how he voted. This distinction is miniscule. Moreover,
both Gogin and Scutchfield confirmed that Gogin asked Hawver if he
signed a card, as he testified. Another alleged discrepancy dealt with a
matter Hawver testified to, which occurred at the end of a January 23
telephone conversation. This matter was not mentioned in the affidavit. The
failure to mention it in the affidavit falls short of a contradiction with
testimony. The other alleged discrepancy deals with a variation between
employees, viz, the Donahue Trucking Company, Respon-
dent's replacement at Pabst, utilized the services of two
employees for what had been Respondent's work at Pabst).
Schultz was also laid off at the same time but his layoff is
not alleged to be an unfair labor practice. Consequently
insofar as the layoff, qua layoff, is concerned, Laise was not
discriminated against.20
The question before me is whether Laise was discrimina-
torily selected for layoff. Pope, who made the decision to
layoff Laise, in consultation with Gerald Gogin, testified
that in determining who should be laid off he used as his
selection criteria time of service and ability.
Time of service need not detain us. For Jennings, who
was hired after Laise (in January 1976), was retained while
Laise was laid off.
Pope further explained his selection of Laise as being
based on his all round ability to do the work of
Respondent, i.e., that Laise had several customer com-
plaints against him, Laise would not do unloading by hand,
Laise had complained about equipment and Laise had
several arguments with dispatchers.
Laise admitted that he did not like to do unloading by
hand. There is no showing, however, prior to February 4
that he ever refused to do it. Laise's only complaint about
equipment specified by the record is his refusal to drive an
unsafe truck. But such a refusal was in Respondent's
interest as well as that of Laise because of legal liabilities
attaching if Laise had continued to drive the truck and had
had an accident because of the disability of the truck.
The only argument between Laise and the dispatchers,
which is specifically demonstrated by the record as
occurring before February 4, is a dispute which occurred
on the night of January 30 where enough drivers were not
present to cover calls to Respondent. The argument
derived from the fact that Laise knew the calls would be
expected but had not brought this to the attention of
management. However, it was not Laise's responsibility to
do this. And it was Fay's job that night to be sure that the
operation was covered.
The only customer complaint shown to have occurred
before February 4 (it occurred in 1975) dealt with an
argument which Pope was told that Laise had with a
supervisor at Wis Pack. Laise explained that he had asked
Gogin and Pope after this incident not to make Laise drive
for Wis Pack because Wis Pack (where Laise had once
been employed) had spread an ugly personal rumor about
Laise. According to Laise's undisputed testimony, he did
not return to Wis Pack after this incident.2 1
This incident may also relate to an event (the only one
testified to with certainty by Ten Broek, general manager
of Wis Pack) where Laise refused to make a delivery
Hawver's affidavit and his testimony in respect to what was said in the
confrontation between Gogin and Hawver when he was discharged. In both
versions the essential fact that Gogin or Hawver pointed out that Hawver
had had disputes with customers on other occasions remains the same. It
found Hawver to be a credible witness who testified in a generally
straightforward fashion. In all the circumstances I attach no weight to the
testimony of Gogin that he did not terminate Hawver because of his union
activities.
20 Although Respondent had never previously laid off any of its drivers.
21 Pope admitted that this matter was resolved. after a discussion with
Laise. on the basis that Laise would not be given any further assignments at
Wis Pack.
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of his stated fear of being struck by rocks at the
location of the delivery where a strike was going on.
Whatever happened at Wis Pack it was not of sufficient
moment to be recorded in Laise's personnel file and was
resolved after a discussion between Laise and Pope. Nor
were there any other documents in that file bearing a date
earlier than February 6 except, apparently, his application
for employment. Moreover, when Gogin addressed his
employees, including Laise at the meeting on January 20,
he stated that the employees did good jobs and that he had
"no complaints with the employees." 22
After Laise was laid off Schultz, also junior to him, was
recalled before him. Although Respondent's Pabst work
resumed on or about February 9 and, as I have found,
required the services of two employees, Laise was not
recalled until March 16. The latter date is after the charges
herein were filed.
In all the circumstances - including Pope's admission
that length of service was used by him as a criterion for
layoff - I conclude that Laise, who was senior to Jennings,
was selected for layoff out of seniority because of his union
activities, particularly his organization of the over-the-road
truckdrivers - of which Gerald Gogin knew and to which
he was strongly opposed. I further conclude that by laying
off Laise on February 6, effective February 4, and by
failing to recall him until March 16, Respondent violated
Section 8(a)(1) and (3) of the Act. 23
The Discharge of Laise
Laise returned to work on March 16 after being
interviewed by Pope and Gerald Gogin on March 15. Laise
was discharged by Pope in the presence of Gogin on May
14.
Laise's union activities continued to be a thorn in
Gogin's side after Laise's recall. Gogin as much as said so
when he told the drivers including Laise at their meeting in
April, previously described, that they were letting one man
lead them around by the nose. Pope identified this man as
Laise. Gogin also demonstrated union animus in late
March in a conversation with Scutchfield when he told
Scutchfield that he did not want Respondent's drivers to
end up with the bad attitude demonstrated by Britton's
drivers who were unionized. 24
However, during the period of Laise's recall, there were a
number of customer complaints against Laise. Consistent
with them Respondent contends that the principal basis for
Laise's discharge was his cumulative misconduct and/or
poor employment record of which Laise's claimed miscon-
duct on May 12-13 was the last incident. In the words of
Pope, Laise's discharge was due to Laise's "attitude" and
"customer complaints."
It is my function to determine what was the true
motivation for Laise's discharge. In all the circumstances, I
agree with Respondent that Laise was discharged for cause.
When Laise spoke to Pope and Gogin on March 15
about returning to work the meeting was acrimonious.
Laise told Pope and Gogin that he would only work 8
22 Balistreri's notes of the meeting so reflect.
2: In the circumstances I attach no weight to Pope's self-serving
testimony that Pope did not layoff Laise because of Laise's union activities.
2- According to the credible testimony of Scutchfield in this regard.
hours, no more, no less. He also said he did not like loading
by hand which was the job offered to him at that meeting.
He was told at the time that Respondent did not like his
attitude.
He did, however, resume work on March 16 in the
capacity of unloading trucks by hand at Pabst.
Laise returned to truckdriving on or about March 22,
carting pallets to be repaired by Reclaimed Pallets. On his
first day on this assignment Laise told Corbett, Re-
claimed's owner, that all deliveries would be made by 2
o'clock because this is when Laise was going to stop each
day. Any deliveries after that time would have to be made
the following day. Corbett told Laise that if deliveries had
to be made they would be made.2 5
This matter along with another incident which apparent-
ly occurred on or about April 19 was brought to the
attention of Respondent in a letter dated April 27 from
Corbett to Respondent. In respect to this other incident
Corbett complained that Laise had not made a pickup of
broken pallets at Miller Brewery, a failure which caused
Corbett to send 17 men home because they had nothing to
work on.
There is some confusion in the testimony in respect to
the second incident referred to in Corbett's letter not only
as to the date of the incident but also to the sequence of
events involved in it. Corbett placed the incident at or
about April 25 or 26, whereas, according to Laise's driver
log, he did no work for Reclaim after April 19. According
to Corbett, Corbett went to Miller's shortly after 8 a.m. on
the day in question and saw two trailers full of pallets
waiting to be picked up by Laise; that Corbett had no
backlog without these two loads and had to telephone to
have his employees sent home about 8:15 a.m.; that he
arrived back at his place of business at about 9 a.m., and
saw Laise who said there were no loads at Miller's; that he
told Laise there were two truckloads at Miller's and that he
directed Laise to go get them but they did not arrive at
Reclaim's yard until after 10 a.m. Laise testified that he
went to Miller's on or about April 19, did not think the
pallets there needed to be repaired hence went to Schlitz
where he picked up a different load of pallets and delivered
them to Reclaim at about 8:05 a.m. Laise continued that
Reclaim's owner then asked him about the Miller pallets
and, after checking with Respondent's dispatcher, Laise
went back to get the pallets. According to one place in his
testimony he got the Miller loads to Reclaim at 8:45 a.m.,
at another 9:45 a.m. (i.e., 15 minutes after he left Miller the
second time at 9:30 a.m. to go back to Reclaim).
This testimony cannot be reconciled. The date and times
are at odds and, if Laise is to be credited, the Schlitz load
was brought by him to Reclaim before the employees
would have been sent home at 8:15 as stated by Corbett.
Further the Miller loads would have arrived within a half
hour or an hour and a half providing enough work (with
Gogin admitted he does not like the attitude of the Bntton drivers, who he
said he knew were union.
2" This is based on the credible testimony of Corbett as not denied by
Laise.
536
GOGIN TRUCKING
the Schlitz load) so that employees would need not be sent
home that day or the next.26 Thus, if I believe Laise,
Corbett's entire testimony as to this event would be pure
fabrication.
But I do not believe that it was. Corbett, unlike Laise,
has no interest in the outcome of these proceedings.
Corbett also testified in a straightforward, credible manner,
whereas I found Laise to be defensive and argumentative
when testifying as to his work record in April and May. 27
Nor do I find any indication of connivance between
Corbett and Gogin. For, significantly, although Gogin and
Pope warned Laise about this incident, he was not
discharged as the result of it.
I therefore credit Corbett's testimony except as to the
date of this incident and discredit Laise's. I believe Laise
has the incident confused with an incident on April 12
when, according to his log, he went to Miller, then to
Schlitz and then to Reclaim and thereafter made several
trips for Reclaim to its customers, without returning to
Miller. All this suggests that since he went to Miller's first
then to Schlitz there was nothing for him to pick up at
Miller's but there was at Schlitz whence he drove to
Reclaim.
I therefore conclude that Laise had to be sent back to get
the Miller loads and that he did not get them to Reclaim
until after Reclaim's employees had been sent home.
Gogin and Pope met with Laise on or about May I to
discuss Corbett's letter of April 27. They also discussed
with him at this same meeting a complaint from one Pinzer
of Pabst who accused Laise of "smarting off" and asked
that Respondent not send Laise back to make deliveries at
Pabst. Pope warned Laise at this time about Laise's
attitude and told Laise that Respondent couldn't put up
with any conduct of Laise which caused complaints from
Respondent's customers.2 8 Laise denied any wrongdoing at
this meeting as indeed he did at the hearing in respect to
both Pabst (in regard to this Pabst complaint) and
Reclaim.
Laise was discharged after another complaint by Pabst
- this time as to his conduct on the night of May 12-13.
The latter incident was extensively litigated at the
hearing. In sum what occurred is as follows.
Laise made two trips to Pabst on the night of May 12 in
which he picked up loads of beer and returned them to
Gogin's yard. I conclude, in all the circumstances,
particularly the implications of his own testimony, that he
received preferential treatment in getting loaded both
times. When Laise returned for his third load about 11:30
p.m. the Pabst shift had changed and he dealt with a
different dispatcher than on the previous two loads. This
dispatcher, Budzynski, refused to give Laise preferential
treatment. Laise became annoyed and demanded to be
taken care of. Because of Laise's demands and complaints
of drivers from other companies about Laise's bragging
26 A trailer load, according to Corbett. takes three-fourths of a day to
repair using his whole crew hence the Schlitz load would take three-fourths
of that day to work on and the two Miller loads would take the balance of
that day and all of the next.
27 Although I found him generally credible elsewhere in his testimony,
much of which is corroborated by other witnesses and the natural sequence
of events.
21 A previous complaint from Wis Pack has already been discussed. A
complaint about Laise had also been received from Miller's.
that he got perferential treatment, Budzynski made several
calls to Pabst's shipping department to report the matter to
the shipping clerk, Klumb, and shipping foreman, Biele-
feldt. The upshot was that Laise was told to wait his turn.
When so told, Laise went to sleep in the drivers' room at
Pabst without telling Budzynski where he was or leaving
Budzynski a note. Budzynski then had to go find Laise
when Laise's turn came up. When Budzynski spoke to
Laise and asked Laise to tell Budzynski where he would be
if the same situation ever occurred again, Laise, in effect,
told Budzynski that Laise did not have to tell him where
Laise was. Budzynski reported Laise's obstinance to
Budzynski's superior, Ritchie, the next day.2 9
After obtaining his turn Laise went to the loading dock
where he, Laise, by his own testimony, had a further
argument with a Pabst official because Laise's own shift
with Respondent would expire before he would be loaded.
Laise got permission from Respondent's dispatcher to
remain to get the load.
Laise then went to the loading area where he raised still
further complaints directly with shipping personnel,
Klumb and Bielefeldt, as to why he, Laise, was not given
preferential treatment. Laise's truck was eventually loaded,
and he left Pabst about 4:20 a.m.30
Bielefeldt reported the matter to McGrath, Pabst's
shipping superintendent the next day. Bielefeldt also told
McGrath that during the course of the evening Bielefeldt
had received complaints from drivers from other compa-
nies asking why Laise was supposed to get loaded ahead of
other drivers and that Laise had bragged that Laise could
get loaded any time he wanted. McGrath called Gerald
Gogin and told him that he would not stand for such
conduct from a Respondent driver.
Laise was discharged by Pope in the presence of Gerald
Gogin on May 14. Pope told Laise that there had been
complaints from Pabst and Reclaim about Laise's conduct
only 2 weeks before and now another complaint had come
from Pabst. Pope told Laise that Respondent would have
to dismiss Laise.
As can be seen from the foregoing, Laise was persona non
grata at Pabst and Reclaim at least and by his own
statement did not wish to do any work for Wis Pack.
Counting only Pabst and Reclaim, this meant that
Respondent could not use Laise to make deliveries to
companies from which, according to the undisputed and
credible testimony of Gerald Gogin, Respondent obtained
about 60 percent of its business.
On the basis of all the foregoing I am well satisfied that
Laise was discharged for cause. The cause was his
continuing poor work attitude about which he had been
warned by Pope in his recall interview on March 15 and
again on or about May I. This attitude was demonstrated
by Laise's cavalier treatment of representatives of compa-
29 These findings are based on the credible testimony of Budzynski in
this regard, as not generally disputed by Laise. To the extent they are I do
not credit Laise. I have already commented on his credibility in respect to
his job performance in April and May.
30 Bielefeldt credibly so testified without dispute. The time is from
Laise's log.
537
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nies with which or through which Respondent handles the
majority of its business.
In concluding that Laise was discharged for cause, I am
not unmindful that Respondent maintained a continuing
animus toward the union activities of Laise even after
Laise's recall on March 16 as I have found. However, it is
well settled that the union activities of an employee - even
where opposed by his employer - do not insulate the
employee from legitimate employer discipline or discharge
for unacceptable performance.3 1 Laise's performance and
particularly his work attitude were clearly unacceptable -
if only for the reason that Respondent's customers could
not tolerate Laise.
I shall, accordingly, recommend that the allegations of
the complaint in respect to Laise's discharge be dismissed.
The Refusal to Bargain
In support of its denial that it has refused to bargain in
violation of Section 8(a)(1) and (5) of the Act, Respondent
advances a number of contentions. Essentially, it urges that
the unit in which the Union has demanded recognition is
inappropriate. It further urges that, even if such a unit is
appropriate, the Union is not the exclusive bargaining
representative of the employees in that unit because its
authorization cards are invalid. Finally, Respondent
contends that it has not extended recognition to the Union
and that no bargaining order is appropriate. I reject each of
these contentions.
The Collective-Bargaining Unit
The unit in which the Union demanded recognition and
which is alleged to be appropriate by the complaint is a
unit consisting of all of Respondent's drivers - both local
and over-the-road - with the customary exclusions.
Respondent argues that the appropriate unit should
include local drivers but exclude the over-the-road drivers;
that it should also include mechanics and the helper
classification and, lastly, that it should include James Fay,
the part-time dispatcher.
Respondent concedes, as it must, that there is nothing in
the Act which requires that the unit for bargaining be the
"only" appropriate unit or the "ultimate" unit or the
"most" appropriate unit. For the Act only requires that the
unit be appropriate.3 2 The Board has found to be
appropriate units of local drivers excluding over-the-road
drivers, 33 units of drivers which include mechanics 3 4 and
units of local and over-the-road drivers which exclude
mechanics.3 5
I find that a unit which includes both local and over-the-
road is appropriate. At the time of the Union's demand for
recognition on January 26 there were nine city drivers and
three over-the-road drivers.
:" E.g., P. G. Berland Paint City, Inc., 199 NLRB 927 (1972).
:2 Morand Brothers Beverage Co., et al., 91 NLRB 409 (1950), enfd. 190
F.2d 576 (C.A. 7, 1951).
13 E.g., Georgia Highwauy Express, Inc., 150 NLRB 1649(1965).
:' E.g., Cless B. Davis d/b'h/a Queen Citn/ Transports, 141 NL.RB 964
(1963).
While the hours and pay of over-the-road drivers are
different from those of city drivers, they otherwise enjoy a
substantial community of interest. Thus, all of Respon-
dent's dispatchers, as Gerald Gogin admitted, have at one
time or another dispatched drivers in both groups. Both
types of drivers drive tractors and trailers and all use the
same type of tractor. Neither Respondent's city nor its
over-the-road drivers receive overtime pay nor do they
punch a timeclock. Drivers in both groups keep driver's
logs. All drivers are eligible for paid holidays and vacations
after I year of service. City drivers and over-the-road
drivers interchange as dictated by exigencies of manpower
or illness. Three former city drivers have become over-the-
road drivers. Over-the-road drivers have performed city
driving after becoming over-the-road drivers. Scutchfield,
for example, was transferred to city driving for a month or
more in February and March 1976. Significantly, the
requested unit of city drivers and over-the-road drivers
would include all of Respondent's drivers.
None of the over-the-road drivers or city drivers perform
any mechanical duties nor does it appear that Respon-
dent's full-time mechanic or its part-time mechanics drive
trucks. Respondent's full-time mechanic, at least, was hired
based on mechanical proficiency whereas the drivers were
all hired for their driving ability. The mechanics perform
their function almost entirely at Respondent's Flagg Street
location. The drivers, of course, perform their principal
work away from Respondent's business locations.
In all these circumstances, I find that a unit generally
consisting of all of Respondent's drivers but excluding its
mechanics is appropriate. In reaching this conclusion I
find no compelling "community of interest" nor inter-
change between the mechanics and the drivers which, as in
the cases cited by Respondent for a contrary result, require
the inclusion of mechanics and drivers in the same unit.
This brings us to those contentions of Respondent which
deal with the unit placement of miscellaneous employees. I
have already found that James Fay is a supervisor within
the meaning of the Act and I will exclude him from the unit
on this basis. As to the helper the record indicates that in
January 1976 Respondent had in its employ an individual
who performed unloading by hand at Pabst. The record
further indicates that such unloading at Pabst is a regular
assignment for city drivers, e.g., Laise and Scutchfield
(while Scutchfield was a city driver in March 1976). 1 shall,
accordingly, include the helper in the appropriate unit.
The appropriate collective-bargaining unit is:
All of Respondent's city and over-the-road drivers
including helpers but excluding mechanics, office
clerical employees,37 owner-operators, 3 8 children of
3s E.g., Mc-Mor-Han Trucking Co., Inc., 166 NLRB 700 (1967).
: Mc-Mor-Han Trucking Co., Inc., supra.
37 The parties agreed to exclude Gwen Gogin, an office employee, and
Don Knaak, Respondent's bookkeeper.
:8 The parties stipulated that owner-operators are not employees within
the meaning of the Act.
538
GOGIN TRUCKING
Gerald Gogin,3 9 guards and supervisors as defined in
the Act.
At the time of the Union's demand for recognition the
foregoing unit consisted of 12 individuals - eight city
drivers, three over-the-road drivers and one helper. The
city drivers were Doughty, Downey, Hebert, Irwin,
Jennings, Laise, Schultz, and Taylor. The over-the-road
drivers were Hawver, Phillips, and Scutchfield. The helper
was Bates. As of January 26, 1976, the Union had received
authorization cards from at least 10 of these employees, a
clear majority.
Respondent, however, contends that all of the cards are
invalid because they were solicited in an atmosphere of
coercion. It further contends that at least five of them are
invalid for the further reason that Laise made misrepresen-
tations as to their purpose when he solicited them. I also
reject these contentions.
In its first contention in this regard Respondent argues
that that all of the authorization cards were executed after
Gerald Gogin met with his employees on January 20, 1976,
and told them, says Respondent, that a number of them
would lose their jobs if Respondent continued to be kept
out of Pabst for the reason that Respondent was a
nonunion carrier. Since the card solicitation occurred
within days of Gogin's talk and since Pabst was the
location where a sizable proportion of Respondent's
business takes place Respondent urges that all the cards
should be rejected either on the basis that they were, in
effect, solicited by a supervisor, Gogin, or were solicited
against the backdrop of an implied union threat, communi-
cated indirectly through Gogin, that employees would lose
their jobs (servicing Pabst) if they did not sign.40 I disagree.
Insofar as Gogin was concerned he merely explained to
his employees the business circumstances in which Respon-
dent found itself at the time. He made it clear that the
choice whether to join a union or not to join belonged to
the employees, as I have found. He spoke neither in favor
of nor against the Union. He did not make any threat of
reprisal nor a promise of benefit to the employees to
encourage them to, nor discourage them from, joining a
union. Finally, he did not solicit the employees to sign
authorization cards. This was done by Laise, an employee,
a few days later.
As to any background of union threats that employees
would lose their jobs if they did not join, this simply was
39 The parties also agreed to exclude Jay Gogin, a city driver, who is
Gerald Gogin's son. Gwen Gogin would likewise be excluded as Gerald
Gogin's daughter.
40 The Board traditionally rejects cards solicited by supervisors. E.g.,
Heck's, Inc., 156 NLRB 760 (1966), enfd. as modified 386 F.2d 317 (C.A. 4.
1967). The Board also rejects cards solicited by union organizers on the
basis of the threat that employees will lose their jobs if they do not execute
such cards. Heck's, Inc., supra.
4" Fularczyk so informed Respondent's then attorney. Hauer, on or
about January 26. according to the undisputed and credible testimony of
Hauer on this point.
42 Viz, there is nothing to show that the Union struck or threatened to
strike Pabst in order to force Pabst to cease doing business with
Respondent, whereas if such had occurred the Union would have acted in
violation of Sec. 8(bX4X B) of the Act.
14 I will consider, infra, the possible later disaffection of the employees
with the Union.
44 The record shows that Hauer was then Respondent's only attorney
not the case. It was Pabst, and not the Union, which shut
Respondent off from making deliveries at Pabst in late
January and early February. While there is some evidence
that the Union had an input to Pabst's decision, 4l there is
no indication that the Union exerted any unlawful pressure
on Pabst which coerced Pabst to take the position that
Respondent, as a nonunion trucker, could not make
pickups or deliveries on Pabst premises.4 2
I, accordingly, do not find the cards to be invalidated
either by supervisory solicitation or by any act tantamount
to union solicitation under threat of loss of job security.
I have already rejected, on the basis of my credibility
findings, Respondent's contention that the five cards
solicited by Laise at the restaurant on January 24 should be
invalidated because Laise told the employees that the cards
would only be used to see what the Union had to offer the
employees. As I have found, Laise rather told the
employees at that time that the purpose of the cards, as the
cards themselves state, was to authorize the Union to
represent the employees for the purposes of collective
bargaining.
On the basis of the Union's authorization card majority
on January 26, 1976, 1 conclude that as of that date, and
since,43 it was and is the exclusive bargaining representa-
tive within the meaning of Section 9(a) of the Act of the
employees in the above-described appropriate bargaining
unit.
The Union demanded recognition on January 26, 1976,
and such recognition was accorded to it by Respondent's
then counsel on January 28 in a telephone conversation.44
By failing thereafter to meet and bargain with the Union
as the Union requested on February 6 (after Respondent
lawfully recognized the Union on January 28) and by
disavowing, hence withdrawing, recognition on February
12, Respondent refused to bargain with the Union in
violation of Section 8(bX5) and (1) of the Act.45
Even if I had not found, as above, that Respondent has
unlawfully refused to bargain with the Union and has
unlawfully withdrawn recognition, I would nonetheless
recommend a bargaining order. For Respondent by its
interrogations and threats to Hawver and Scutchfield in
violation of Section 8(a)(1) and its discharge of Hawver
and layoff of Laise in violation of Section 8(aX3 ) and (1) of
the Act has destroyed the possibility of holding of a free
and fair election.46
and was authorized by Gogin at the time to handle Gogin's union affairs. I
conclude, therefore, that Hauer was at that time the agent of Respondent,
acting on its behalf, within the meaning of Sec. 2(13) of the Act.
45 Withdrawal of recognition from a lawfully established exclusive
bargaining representative in the face of that representative's demand for
negotiations constitutes a refusal to bargain within the meaning of Sec.
8(aX5) and (1). See e.g.. Laystrom Manufacturing Co., 151 NLRB 1482, 1484
(1965), enforcement denied on other grounds (sufficiency of evidence) 359
F.2d 799 (C.A. 7, 1966).
45 N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969).
Nor may Respondent rely on the employees' subsequent disaffection with
the Union (which was demonstrated by their requests to withdraw their
authorization cards at a meeting with the Union in April) as a basis to
continue to refuse to recognize the Union. For, I find, that such disaffection,
if indeed this is what it was, occurred in the circumstances of, hence cannot
be dissociated from, Respondent's unfair labor practices. SeeJ. H. Patterson
Company, 217 NLRB 1030(1975).
Nor can Respondent rely on the minimal variation between the unit in
(Continued)
539
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above occurring in
connection with the operations described in section I,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All of Respondent's city and over-the-road drivers
including helpers but excluding mechanics, office
clerical employees, owner-operators, children of Gerald
Gogin, guards and supervisors as defined in the Act.
4. At the time it demanded recognition on January 26,
1976, the Union was, and has since continued to be, the
exclusive representative of the employees in the aforesaid
unit within the meaning of Section 9(a) of the Act.
5. By refusing to bargain with the Union on February
6, 1976, and by withdrawing recognition from it on
February 12, Respondent has violated, and is violating,
Section 8(a)(1) and (5) of the Act.
6. By discharging Daniel Hawver on February 2, 1976,
because of his union activities Respondent has violated
Section 8(a)(1) and (3) of the Act.
7. By laying off Robert Laise on February 6, 1976,
effective February 4, 1976, because of Laise's union
activities and thereafter refusing to recall him until March
16, 1976, Respondent violated Section 8(a)(1) and (3) of the
Act.
8. By discharging Robert Laise on May 16, 1976,
Respondent did not violate Section 8(a)(l) and (3) of the
Act.
9. By coercively interrogating employees about, or
threatening its employees with reprisal for, their union
activities on January 23 and 29, 1976, Respondent has
violated Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
which recognition was demanded (all drivers) and the unit I have found
appropriate (all drivers plus the helper) as legal justification for its refusal to
bargain with the Union. Heck's, Inc., supra; cf. American Map Company,
Inc., 219 NLRB 1174, 1184-85. Since the Union sought, inter alia, city
drivers who perform unloading work by hand as a regular assignment, the
Union's demand includes such unloader by implication, in any event.
47 Trading Port, Inc., 219 NLRB 298, 301 (1975).
THE REMEDY
The recommended Order herein will contain the conven-
tional provisions for cases involving the types of interfer-
ence, restraint, and coercion, unlawful layoff and discharge
and unlawful refusal to bargain which occurred in this case
and which, variously, resulted in violations of Section
8(a)(1), (3), and (5) of the Act. This Order will require
Respondent to cease and desist from the unfair labor
practices found and to post a notice to that effect which
will also state the affirmative action Respondent will be
required to take to remedy its unlawful acts.
Thus, in respect to the discharge of Hawver, Respondent
will be required to offer Hawver reinstatement to his
former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges. Hawver
and Laise, who was discriminatorily laid off but later
recalled, shall each be made whole for any loss of earnings
he may have suffered by reason of the discrimination
against him. Hawver will be made whole by payment to
him of a sum of money equal to that he would have earned
from the date of his unlawful discharge to the date of an
offer of reinstatement to him and Laise will be made whole
by payment to him of a sum of money equal to what he
would have earned during his unlawful layoff - in each
case less net earnings, if any, the employee earned after his
unlawful discharge or during the period of his unlawful
layoff, to be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with 6-percent
interest thereon as prescribed by Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
The recommended Order will also direct Respondent to
bargain, upon the Union's request, with the Union as the
exclusive bargaining representative of the employees in the
unit heretofore found appropriate and, if an understanding
is reached, to embody that understanding in a signed
agreement. Respondent's obligation to bargain conmenced
as of January 26, 1976, when the Union demanded
recognition and it shall be directed to bargain with the
Union as of that date.47
Finally, it will be recommended, because of the nature of
the unfair labor practices in which Respondent has
engaged (see N.L.R.B. v. Entwistle Manufacturing Co., 120
F.2d 532, 536 (C.A. 4, 1941)), that Respondent be ordered
to cease and desist from infringing in any manner upon the
rights guaranteed its employees by Section 7 of the Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER48
The Respondent, Gerald G. Gogin d/b/a Gogin Truck-
ing, Milwaukee, Wisconsin, its officers, agents, successors,
and assigns, shall:
4' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
540
GOGIN TRUCKING
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with Teamsters "General" Local Union No.
200, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive collective-bargaining representa-
tive in the following unit which has been found to be
appropriate for the purposes of collective bargaining:
All of Respondent's city and over-the-road drivers
including helpers but excluding mechanics, office
clerical employees, owner-operators, children of Gerald
Gogin, guards and supervisors as defined in the Act.
(b) Discouraging membership in, or activities on behalf
of, the above-named labor organization by discriminating
in regard to hire and tenure of employment or in any other
manner in regard to any term or condition of employment
of any of Respondent's employees.
(c) Coercively interrogating its employees concerning
their union activities, threatening them with reprisal for
union activities or in any other manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively as of January 26,
1976, with the above-named labor organization as the
exclusive bargaining representative of all the employees in
the above-described appropriate bargaining unit with
respect to rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Offer to Daniel Hawver immediate and full reinstate-
ment to his former position or, if it no longer exists. to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make Hawver
and Robert Laise whole for any loss of pay they may have
suffered as the result of the discrimination against them in
the manner set forth in the "Remedy" section of this
Decision.
(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 Milwaukee, Wisconsin, places of business,
copies of the attached notice marked "Appendix.'" 49
Copies of this notice on forms provided by the Regional
Director for Region 30, after being duly signed by
Respondent, shall be posted by it immediately upon receipt
thereof and be maintained by it 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 such notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 30, in
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, and it
hereby is, dismissed insofar as it alleges violations not
found herein.
49 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 Courts of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the choice to give
evidence it has been decided that we have violated the
National Labor Relations Act and we have been ordered to
post this notice.
The National Labor Relations Act gives you, as
employees, certain rights, including the rights:
To self-organization
To form, join or help unions
To bargain collectively through a representa-
tive of your own choosing
To act together for collective bargaining or
other mutual aid or protection, or
To refrain from any or all such activities.
WE WILL NOT coercively interrogate you concerning
your union activities.
WE WILL NOT threaten you with reprisal for engaging
in union activities.
WE WILL NOT discharge you, lay you off, or take any
other reprisal against you because you join, support, or
engage in any union or other concerted activities.
WE WILL NOT refuse to bargain collectively with
Teamsters "General" Local Union No. 200, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of our employ-
ees in the following unit which has been found to be
appropriate:
All of our city and over-the-road drivers
including helpers but excluding mechanics, office
clerical employees, owner-operators, children of
Gerald G. Gogin, guards and supervisors as
defined in the Act.
WE WILL, upon request, bargain collectively with the
above-named labor organization with respect to your
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, WE WILL embody that understanding in a
signed agreement.
541
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer to reinstate Daniel Hawver to his
former or substantially equivalent position with full
seniority and all other rights and privileges as the Board
has found that he was discharged because of his union
activities.
WE WILL make up all pay lost by Daniel Hawver as
the result of his discharge and all pay lost by Robert
Laise as the result of his layoff, plus 6-percent interest.
GERALD G. GOGIN D/B/A
GOGIN TRUCKING
542