Grocery Haulers, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1995

315 N.L.R.B. 1312 (N.L.R.B. 1995)

1312
315 NLRB No. 173
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No exceptions were filed to the judge’s dismissal of the com-
plaint allegation that the Respondent violated Sec. 8(a)(3) and (1) of
the Act by discharging employee Rory Scott.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In his Conclusions of Law 4 the judge inadvertently included a
finding of a violation of Sec. 8(a)(5). We correct this error.
3 As requested by the General Counsel in his exceptions, we have
modified the judge’s recommended Order and notice to conform to
and remedy the violations found.
Grocery Haulers, Inc. and Local 707, International
Brotherhood of Teamsters, AFL–CIO and
Local 6, Amalgamated Industrial and Service
Workers Union, Party to the Contract. Cases
29–CA–17356, 29–CA–17372, 29–CA–17407,
and 29–CA–17458
January 13, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On July 29, 1994, Administrative Law Judge How-
ard Edelman issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the Respondent and Teamsters
Local 707 filed answering briefs. The General Counsel
filed a reply brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Grocery Haulers, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Recognizing and bargaining with Local 6, Amal-
gamated Industrial and Service Workers Union (Local
6), or any successor thereto, as the collective-bargain-
ing representative of its employees, unless and until
Local 6 is certified by the National Labor Relations
Board as the exclusive representative of an appropriate
unit of the Respondent’s employees.
(b) Maintaining or giving any force or effect to its
collective-bargaining agreement with Local 6, and to
any modifications, extensions, supplements, or renew-
als thereof; or to any Local 6 deduction authorizations
that have been executed by its employees; or to any
other contract, agreement, or understanding entered
into with Local 6, or any successor thereto, covering
its employees with respect to rates of pay, wages,
hours of employment, or other terms and conditions of
employment; provided, however, that nothing in this
Order shall be construed to require the Respondent to
vary or abandon any wage increase or other benefits,
terms, and conditions of employment that it has estab-
lished in performance of the agreement.
(c) Deducting union fees, dues, assessments, and
other moneys from the wages of its employees on be-
half of Local 6, and remitting the union fees, dues, as-
sessments, and other moneys to Local 6, unless and
until Local 6 is certified by the National Labor Rela-
tions Board as the exclusive bargaining representative
of the Respondent’s employees, and the employees
thereafter execute uncoerced authorizations for the de-
duction of the union fees, dues, assessments, and other
moneys from their wages pursuant to a valid collec-
tive-bargaining agreement.
(d) Rendering assistance and support to Local 6 by
soliciting its employees to execute Local 6 member-
ship and dues-checkoff cards.
(e) Rendering assistance and support to Local 6 by
threatening its employees with discharge if they did
not sign Local 6 membership and dues-checkoff cards.
(f) Interrogating its employees concerning their
membership in, or activities on behalf of, Local 707,
International Brotherhood of Teamsters, AFL–CIO
(Local 707).
(g) Threatening its employees with discharge be-
cause of their membership in, or activities on behalf
of, Local 707.
(h) Proceeding to arbitration seeking the discharge
of Vincent Taliercio because of his membership in, or
activities on behalf of, Local 707.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold recognition from Local
6, or any successor thereto, as the collective-bargaining
representative of its employees, unless and until Local
6 is certified by the National Labor Relations Board as
the exclusive representative of an appropriate unit of
the Respondent’s employees.
(b) Reimburse all of its present and former employ-
ees for any dues, initiation fees, assessments, and other
moneys deducted from their wages on behalf of Local
6, together with interest thereon as provided in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
1313GROCERY HAULERS, INC.
4 If this 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.’’
(c) Withdraw, in writing to Local 6, its arbitration
proceedings seeking the discharge of Taliercio, and no-
tify Taliercio in writing of such action.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records nec-
essary to analyze the amounts of money due and pay-
able to its employees under this Order.
(e) Post in conspicuous places at its Brooklyn, New
York facility, and at all other locations where notices
to employees are posted, copies of the attached notice
marked ‘‘Appendix.’’4 Copies of the notice, on forms
provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT recognize or bargain with Local 6,
Amalgamated Industrial and Service Workers Union
(Local 6), or any successor thereto, as the collective-
bargaining representative of our employees, unless and
until Local 6 is certified by the National Labor Rela-
tions Board as the exclusive representative of an ap-
propriate unit of our employees.
WE WILL NOT maintain or give any force or effect
to our collective-bargaining agreement with Local 6,
and to any modifications, extensions, supplements, or
renewals thereof; or to any Local 6 deduction author-
izations that have been executed by our employees; or
to any other contract, agreement, or understanding en-
tered into with Local 6, or any successor thereto, cov-
ering our employees with respect to rates of pay,
wages, hours of employment, or other terms and condi-
tions of employment, and WE WILL NOT seek to vary
or abandon any wage increase or other benefits, terms,
and conditions of employment that we have established
in performance of the agreement.
WE WILL NOT deduct union fees, dues, assessments,
and other moneys from the wages of our employees on
behalf of Local 6, and cease and desist from remitting
the union fees, dues, assessments, and other moneys to
Local 6, unless and until Local 6 is certified by the
National Labor Relations Board as the exclusive bar-
gaining representative of our employees, and the em-
ployees thereafter execute uncoerced authorizations for
the deduction of the union fees, dues, assessments, and
other moneys from their wages pursuant to a valid col-
lective-bargaining agreement.
WE WILL NOT render assistance and support to Local
6 by soliciting our employees to execute Local 6 mem-
bership and dues-checkoff cards.
WE WILL NOT render assistance and support to Local
6 by threatening our employees with discharge if they
do not sign Local 6 membership and dues-checkoff
cards.
WE WILL NOT interrogate our employees concerning
their membership in, or activities on behalf of, Local
707, International Brotherhood of Teamsters, AFL–
CIO (Local 707).
WE WILL NOT threaten our employees with dis-
charge because of their membership in, or activities on
behalf of, Local 707.
WE WILL NOT proceed to arbitration seeking the dis-
charge of Vincent Taliercio because of his membership
in, or activities on behalf of, Local 707.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold recognition from
Local 6, or any successor thereto, as the collective-bar-
gaining representative of our employees, unless and
until Local 6 is certified by the National Labor Rela-
tions Board as the exclusive representative of an ap-
propriate unit of our employees.
WE WILL reimburse all of our present and former
employees for any dues, initiation fees, assessments,
and other moneys deducted from their wages on behalf
of Local 6, together with interest thereon.
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL withdraw, in writing to Local 6, our arbi-
tration proceedings seeking the discharge of Taliercio,
and notify Taliercio in writing of such action.
GROCERY HAULERS, INC.
Sharon Chau, Esq., for the General Counsel.
Sanford Pollack, Esq. (Horowitz & Pollack, P.C.), for the
Respondent.
Joseph J. Vitale, Esq. (Cohen Weiss & Simon), for Charging
Party Local 707.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on January 19, 20, and 24, 1993, in
Brooklyn, New York.
Based upon unfair labor practice charges filed by Local
707, International Brotherhood of Teamsters, AFL–CIO (the
Union) against Grocery Haulers, Inc. (Respondent), General
Counsel caused a complaint to issue on October 14, 1993,
alleging violations of Section 8(a)(1), (2), and (3) of the Act.
The thrust of the complaint alleges that Respondent unlaw-
fully recognized Local 6, Amalgamated, Industrial, and Serv-
ice Workers Union (Local 6) and thereafter executed a col-
lective-bargaining agreement with Local 6 containing union-
security provisions, unlawfully discharged one employee, in
violation of Section 8(a)(1) and (3), and engaged in various
independent violations of Section 8(a)(1).
On the entire record, including my observations of the de-
meanor of the witnesses, and the briefs filed by counsel for
the General Counsel, counsel for the Union, and counsel for
Respondent, I make the following findings of fact and con-
clusions of law.
Respondent, is a New York corporation, with its office
and principal place of business located in Edgewood, New
York, and a facility located on 8925 Avenue D, Brooklyn,
New York. Respondent is engaged in the business of deliver-
ing meat, grocery, and dairy products from various whole-
salers to various supermarket chains, including Key Foods,
located in the State of New York. Respondent annually re-
ceives in excess of $50,000 for the delivery of such products.
Key Food annually purchases in excess of $50,000 worth of
food products, which it receives directly from States other
than the State of New York.
It is admitted and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
It is also admitted, and I find that the Union and Local
6 are labor organizations within the meaning of Section 2(5)
of the Act.
Respondent corporation was formed in December 1992
when Mark Jacobson, Respondent president and an admitted
supervisor within the meaning of Section 2(11) of the Act,
was informed by Key Food that his bid to succeed R-Jo
Trucking, who was at that time making all warehouse deliv-
eries to various Key Food stores had been approved, and that
he would begin making such deliveries in late January or
early February 1993.
Sometime in December 1992, Respondent advertised for
drivers. Applicants who responded to Respondent’s ad were
informed that a meeting would be held at a local Marriott
Hotel in December 1992, and that a meeting would be held
where they would be interviewed for employment. The meet-
ing took place sometime in late December 1992. About 60
applicants were interviewed. After the interview, the appli-
cants were told by Respondent officials to report to the
Salem Truck Leasing facility for a road test on January 5,
1993. Salem is a corporation which leases trucks to Respond-
ent.
On January 5, 1993, about 53 applicants arrived at the
Salem facility, a large facility area, for their road tests. Offi-
cials of Respondent and Salem were present. During a sev-
eral hour period, road tests were administered. About 50 em-
ployees passed the road test. They were paid a flat rate for
taking the test, and were informed by Respondent officials
that they were on a standby status, and would be contacted
by Respondent as to when to report for work. In the mean-
time, R-Jo was performing the deliveries for Key on a day-
to-day basis.
On or about January 8, Respondent was notified by Key
that it would commence regular deliveries for Key on Mon-
day, January 11. The 50 standby employees were notified by
Respondent that they should report for work on the morning
of January 11. According to the admission of Respondent’s
operation manager, James Stapleton, an admitted supervisor
as defined in the Act, all the 50 odd employees who reported
for work on January 11 filled out employment applications.
These employees were not paid a salary until they began
work on January 11.
Sometime on January 5, when the applicants were taking
their road tests, Local 6 officials, Joseph Girlando and
Armondo Ponce, who were apparently present at the Salem
facility, signed up a number of applicants and on that same
day notified Respondent President Jacobson that they rep-
resented a majority of Respondent’s employees. There is no
evidence as to whether the employees who signed the Local
6 petition proffered by Local 6 signed it before or after they
were notified by Respondent that they were on a standby sta-
tus. In any event, Respondent President Jacobson called his
attorney, Sanford Pollack, who came down to Respondent’s
facility in the afternoon of January 5 and met with the Local
6 representatives and Jacobson. During the course of the
meeting, one of the Local 6 officials showed Jacobson the
petition and Jacobson compared the signatures on the petition
with the signatures on Respondent’s sign-in sheet. Jacobson
told Pollack that it appeared that approximately 30 employ-
ees had signed the petition. Pollack then stated that Respond-
ent had no alternative but to recognize Local 6 as the collec-
tive-bargaining representative for its drivers. A standard rec-
ognition agreement was immediately thereafter executed. On
January 14, Respondent executed a collective-bargaining
agreement with Local 6. The collective-bargaining agreement
contained the usual union-security provisions including a
checkoff clause, which provided that Respondent would,
upon obtaining proper authorization from the employees, de-
duct Local 6 dues and remit such moneys to Local 6. There
is no dispute that beginning on January 14, and thereafter
Respondent deducted such dues from its employees pursuant
to the contract’s checkoff provisions.
1315GROCERY HAULERS, INC.
1 This conversation is based upon the credible testimony of
Taliercio. I was impressed with Taliercio’s demeanor. He testified in
detail, both on direct and cross-examination. He was responsive and
appeared sincere. Moreover, although Stapleton was called as a wit-
ness by Respondent, he was not questioned concerning this con-
versation. Thus, Taliercio’s testimony is unrebutted.
2 Although I do not conclude that Scott is as credible a witness
as Taliercio, since his testimony is not denied or contradicted by
Stapleton, and is consistent with that of Taliercio, I credit Scott’s
testimony.
3 Stapleton, although called as a witness by Respondent, did not
deny the interrogation attributed to him by Scott. Moreover, Scott’s
testimony is consistent with much of Respondent’s admitted conduct.
4 Scott impressed me generally as an evasive witness, especially on
cross-examination, concerning the events surrounding his discharge.
Moreover, looking at the destruction caused by his backing into the
fence, it is impossible to believe that the driver of the truck would
not only feel the impact, but hear it as well. The Key Food report
of the accident indicating that Scott drove away without stopping to
check the damage he had caused, indicates to me that Scott is an
untrustworthy employee. Therefore, I find Scott to be generally an
incredible witness. I credited his testimony concerning his conversa-
tions with Stapleton primarily because Stapleton did not deny them
and because they were consistent with similar Respondent conduct
(see fns. 1–3).
On January 26, Respondent driver Vincent Taliercio was
present at Respondent’s dispatcher office with Respondent
Operations Manager Stapleton. Stapleton handed Taliercio a
Local 6 dues-checkoff card and asked him to sign it.
Taliercio responded that he wanted to hold off before signing
the card. Stapleton replied that: ‘‘If you don’t sign this,
you’re not going to work today.’’ Taliercio then signed the
dues-checkoff card.1
Sometime during the morning of January 26, employee
Rory Scott was present at the dispatcher’s office. Stapleton
handed Scott a Local 6 membership card and a dues-checkoff
card and told Scott to sign the cards. Scott replied that he
did not want to. Stapleton responded that if Scott wanted to
keep his job, it would be in his best interest to sign the
cards. Scott signed both cards.2
Since January 26, Respondent has deducted Local 6 dues
from Taliercio and Scott.
During the months of April and May employee Scott and
other unit employees became disenchanted with Local 6 rep-
resentation and attended several union meetings. During this
period, Scott attended three such meetings. Sometime after
Scott attended his second meeting Stapleton came over to
him and asked him what was going on with the Union, and
who had attended the second meeting attended by Scott.3
Stapleton then told Scott that if he continued his involvement
with the Union his job might be at stake.
Taliercio had originally been appointed to the position of
Local 6 shop steward. However, by April he had become dis-
enchanted with Local 6 and had become active on behalf of
the Union. Sometime in early May Stapleton had approached
him by the dispatcher’s office and told him the Union would
never get in and if he continued with his activity and support
for the Union he might not have a job.
On May 12, one of Respondent’s dispatchers told em-
ployee Scott that Jacobson wanted to see him. Scott then
went to Jacobson’s office. Jacobson showed Scott a picture
of a wooden stockade fence with about two-and-a-half sec-
tions flattened, leaving a gaping hole in the fence about the
width of a tractor trailer (G.C. Exh. 10). Jacobson told Scott
that he had received a call from a dispatcher at one of the
Key Food stores on Scott’s route that Scott had knocked over
a section of fence with the rear of his trailer. Scott responded
that he was unaware of such accident. The Key Food em-
ployee who witnessed the accident filed a written report of
the accident indicating that Scott was the driver of the truck
which backed into the fence, and that Scott drove off without
stopping.4 Therefore, based upon my unfavorable impression
of Scott’s credibility, I conclude that Scott was aware that
he had had an accident and deliberately failed to report it.
Jacobson then told Scott that he was suspended, pending ar-
bitration, and probably would be fired. Although Respondent
is a new corporation, formed for the execution of its contract
with Key, it had an initial policy that employees may be ter-
minated for failure to report an accident. It appears that Re-
spondent was concerned about the failure to report, which
bears on trustworthiness, rather than the accident itself. In
this connection Scott had a trailer accident on April 30,
which was reported and Respondent took no action.
A few days later Scott received a termination letter from
Respondent. The letter set forth as a cause for discharge the
unreported accident, described above, and an additional cause
that Scott returned from a delivery to Key with 43 cases of
juice and failed to advise Respondent dispatchers of such re-
turn as required, so that it could be stored in Respondent’s
refrigerator. Such failure to advise Respondent’s dispatchers
of the return resulted in a total spoilage of the juice.
Scott testified that on Friday, May 7, late in it afternoon,
the Key manager at a store to which Scott was making a de-
livery refused to accept the delivery of 43 cases of juice,
claiming it was too late in the day. Key then issued a claim
number covering the refused delivery and gave this to Scott.
Scott testified that he then notified Respondent’s dispatcher,
Joseph Olivo, and told him about the refused delivery and
Olivo told him to return to Respondent’s facility and where
to park his trailer. Scott returned to Respondent’s facility and
parked his trailer, and delivered his routine papers to Olivo.
Olivo, during direct and cross-examination, repeatedly de-
nied that Scott ever called him about the failure of Key to
accept the delivery. Olivo testified that the usual policy in
such cases is for the driver to return the unaccepted delivery
to Respondent’s warehouse, and inform the dispatcher on
duty of the return so that appropriate measures by Respond-
ent can be taken to store the food product. In this case ap-
propriate measures would have been to the store the product
in a refrigerator.
I do not credit Scotts testimony that he informed Olivo
about the refused delivery of juice. I do credit Olivo’s testi-
mony that Scott never told him about the refused delivery,
and that is the reason that Respondent did not remove the
juice from Scott’s trailer and that is also why the cases of
juice spoiled. As set forth above, I was very unfavorably im-
pressed with Scott’s credibly. Scott’s failure to report the re-
fused delivery to his dispatcher, Olivo, is exactly consistent
with his failure to report his accident at Key. Moreover, I
was impressed with the credibility of Olivo. His testimony
on both direct and cross-examination was detailed, decisive,
and responsive. The manner in which he testified appeared
to be objective. I was most impressed with his credibility.
During the trial of this case, Jacobson testified as to sev-
eral reasons for Scott’s termination. Initially, he testified that
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Jacobson admitted making the above statement attributed to him
during his testimony, because at the time Taliercio was the Local 6
shop steward but was wearing a union T-shirt. Moreover, in his affi-
davit he also admitted making the same statement.
Scott was terminated for the reasons set forth in the termi-
nation letter as set forth and discussed above. Thereafter
when reviewing Respondent’s personnel file Jacobson testi-
fied that the April 30 accident, also discussed above, was a
reason for his termination. Still later in his testimony, he tes-
tified that the juice incident was standing alone, sufficient to
justify Scott’s termination.
Sometime in the middle of May, Stapleton told Taliercio
in the dispatcher’s office not to wear the union T-shirts, be-
cause it was not their Union, and it was not good.
On May 14 or 18, Jacobson confronted Taliercio and stat-
ed to him: ‘‘Listen you little fucking scum bag one wrong
move and you’re gone.’’ Taliercio asked what he had done.
Jacobson showed him a picture of his truck with a dent on
the top and asked him if he had done this. Taliercio denied
that he was responsible for the dent. Jacobson told Taliercio
that he had already had three accidents since his employ, that
he had stolen a large quantity of meat from his truck, and:
‘‘ One more spit on the fucking sidewalk and go see which
union is going to protect you, because you’ll be gone, you
fucking faggot.’’5 At no time during this conversation did
Jacobson tell Taliercio that he was terminated. Subsequently,
Taliercio received a written warning which stated: ‘‘This is
not the first time trailer damage has happened in connection
with your name. Should another such incident occur this
company will terminate your employment. Thereafter,
Taliercio had no further accidents nor work-related com-
plaints.
On June 3, at Respondent’s direction Respondent Attorney
Pollack requested Local 6 to submit the question as to
whether Respondent had the right to discharge Taliercio.
Jacobson testified that about a week after his mid-May con-
versation with Taliercio, described above, he received two
letters from Joseph Poza and John Stover, Respondent em-
ployees, which stated that they were given cards for Local
138 International Brotherhood of Teamsters, AFL–CIO and
later for the Union and were asked to sign these cards by
Taliercio who told them that if they didn’t sign by May 14,
they would lose their seniority and not be able to join the
Union later (there was no specific union specified in their
letters). Jacobson testified that he spoke with the above-
named employees who confirmed that wrote the letters.
Jacobson did not testify as to any specific conversation he
may have had with these employees. Moreover, although
Poza was called as a witness by Respondent, he was not
questioned as to any conversation he had with Taliercio con-
cerning the union cards nor a subsequent conversation with
Jacobson concerning his letter. Stover was not called as a
witness. Jacobson admits that solely on the basis of the con-
tents of the letters he contacted his attorney, Pollack, and
thereafter received a copy of Pollack’s letter to Local 6 seek-
ing to discharge Taliercio. Jacobson’s actions were taken
without speaking to Taliercio concerning the alleged union
card solicitation.
Conclusions
The Board’s well-established test for determining whether
recognition has been lawfully extended is twofold. At the
time of recognition, an employer (1) must employ a substan-
tial and representative compliment of its project work force,
and (2) the employer must be engaged in its normal business
operations. Crown Cork & Seal Co., 182 NLRB 657 (1970);
Hayes Coal Co., 197 NLRB 1162 (1972); Herman Bros.,
264 NLRB 439 (1982); Hilton Inn Albany, 270 NLRB 1364
(1984); A.M.A. Leasing, 283 NLRB 1017 (1987). The Board
had held that the finding that an employer was not engaged
in its normal business operations at the time it extended rec-
ognition to a labor organization would, standing alone, estab-
lish a violation. A.M.A. Leasing, supra at 1024.
In A.M.A. Leasing, supra at 1023–1024, the Board af-
firmed the judge’s finding that the employer therein unlaw-
fully recognized the union on August 7 and entered into a
collective-bargaining agreement with the union on August
15, because the employer did not begin its normal operations
until September 17. The judge found that between the period
of late July and mid-September, the employees hired were
performing essentially cleanup and related work necessary in
order to make the plant operational. It was only in mid-Sep-
tember, well after recognition had been granted, that the em-
ployer’s plant became engaged in normal operations. See
also Hilton Inn Albany, supra at 1365–1366.
In the instant case Respondent contends that its drivers
were hired in December 1992, when they interviewed at the
Marriot Hotel. Such contention is entirely without merit. The
employees were not paid for the interview, were not placed
on any payroll, and were not paid any regular salary until
January 11. It is also clear that the employees were not hired
on January 5 when they took their road test. At that time
they were paid a flat rate for taking the test and informed
that they were on a standby status until they were called to
report to work. It was only on January 11, when Respondent
took over the Key Food deliveries that the individuals who
passed the road test were first called to report to work, filled
out employment applications, were placed on Respondent’s
payroll, and were thereafter paid a regular salary that one
could conclude that they first became employees in any real
sense. It is undisputed that from January 5, when they took
their road test, until January 11, when Respondent began its
normal operations the alleged employees performed no work
for Respondent and were not in any way paid. Thus, when
Respondent extended recognition to Local 6 on January 5, it
employed no employees, and was not engaged in its normal
operations. As a matter of fact at the time recognition was
extended, Respondent was not certain when its normal oper-
ation would begin. However, assuming Respondent’s conten-
tion, that the employees were ‘‘employees’’ on January 5,
the date recognition was extended, it is clear they performed
zero work from January 5 until January 11. Thus, unlike the
employees in A.M.A. Leasing and Hilton Inn Albany, where
the employees performed cleanup work or work getting the
plant operational, Respondent’s so-called employees per-
formed zero work during a like period. In any event the law
is clear that merely listing employees on a payroll is not suf-
ficient to rise to the level of engaging in normal operations;
A.M.A. Leasing and Hilton Inn Albany.
Accordingly, I conclude that by executing a recognition
agreement with Local 6 at a time when Respondent was not
1317GROCERY HAULERS, INC.
6 As set forth above, although Poza was called as a witness by Re-
spondent he was not questioned about his written complaint concern-
ing Taliercio’s coercive solicitation. Stover was not called as a wit-
ness.
engaged in its normal business operations, Respondent vio-
lated Section 8(a)(1) and (2) of the Act.
I also conclude that the execution of a collective-bargain-
ing agreement with Local 6 on January 14, which flowed
from the above unlawful recognition agreement is similarly
unlawful, and in violation of Section 8(a)(1) and (2) of the
Act. Moreover, since this collective-bargaining agreement
also contains union-security and dues-checkoff provisions
which were enforced, I conclude that Respondent addition-
ally violated Section 8(a)(1) and (3) of the Act, A.M.A. Leas-
ing, supra; Hilton Inn Albany, supra.
The Board has long held that it is unlawful to urge or
threaten an employee with discharge in order to coerce him
to join a union or to sign a dues-checkoff authorization. It
is also unlawful to obtain a coerced dues-checkoff authoriza-
tion card thereafter deduct and remit such deducted dues to
a union, Boggett Industrial Constructors, 219 NLRB 171,
172 (1975); Herman Bros., supra.
The undisputed evidence establishes that Respondent’s su-
pervisor, Stapleton, solicited and directed Respondent’s em-
ployees Taliercio and Scott to execute such dues-checkoff
cards and pursuant to such cards, Respondent deducted dues
from its employees’ paychecks and remitted such dues to
Local 6. By engaging in such conduct, I conclude that Re-
spondent violated Section 8(a)(1), (2), and (3) of the Act,
Wackenhut Corp., 226 NLRB 1085 (1976).
The evidence set forth above established that sometime in
April or May, after Scott had attended a union meeting Re-
spondent’s supervisor, Stapleton, asked Scott whether there
was a union meeting and who attended the meeting. Addi-
tionally, after attending a union meeting on May 7 Stapleton
again asked Scott about the meeting, and what was going on,
and what he was going to do about the Union. Stapleton was
Respondent’s operations manager, a high supervisory posi-
tion. Scott was neither an open nor active union supporter,
except for his attendance at these union meetings attended by
other employees. The interrogations were accompanied by
threats of discharged, described above and below. Accord-
ingly, I conclude that such questions concerning whether
there was a union meeting, which employees attended, and
what was Scott’s position as to the Union, in the cir-
cumstances described above, constitute unlawful interroga-
tions, in violation of Section 8(a)(1) of the Act, Rossmore
House, 269 NLRB 1176 (1984); Sunnyvale Medical Center,
277 NLRB 1217 (1985).
The credible evidence clearly establishes that sometime in
early May Respondent’s supervisor, Stapleton, told employee
Taliercio that according to Jacobson, the Union would never
get in the shop, that Taliercio’s efforts on behalf of the
Union were wrong, and if he kept it up, he might not have
a job. The credible evidence also establishes that following
the May 7 union meeting, and in connection with above-de-
scribed interrogation of Scott, Stapleton told Scott that if he
continued his involvement with the Union, his job would be
at stake. Such statements by Stapleton constitute clear threats
to discharge employees because of their activities on behalf
of the Union, and I conclude they are violative of Section
8(a)(1) of the Act; Maremont Corp., 294 NLRB 11, 40–41
(1989).
The facts establish that several days following Taliercio’s
heated conversation with Jacobson, and subsequent written
warning concerning Taliercio’s driver negligence, Jacobson
received several alleged complaints from at least two drivers
(Poza and Stover) concerning Taliercio’s attempts to solicit
their signing a card for the Union. Jacobson testified that
Poza and Stover made written complaints concerning
Taliercio’s solicitations exhibits (R. Exhs. 5 a and b). The
letters signed by both employees set forth that Taliercio
asked then to sign a card for the Union and then stated; ‘‘[I]f
I didn’t sign up by Friday, May 14, I would lose all my se-
niority and not be able to join the union later.’’ Jacobson tes-
tified that he spoke with the above employees and verified
the complaints. Following such verification he contacted his
attorney, Pollack. Respondent contends that Taliercio’s at-
tempted solicitations constituted coercion and harassment of
its employees. Solely, as a result of the above employee
complaints, Respondent’s attorney, Pollack, sent a letter to
Local 6 requesting arbitration on whether Respondent had
the right to discharge Taliercio (trial record pp. 331–334,
G.C. Exh. 9). I find that Respondent, and its attorney’s ac-
tion, was taken solely because of the complaints filed by its
employees, Poza and Stover.
Examining the employees’ written complaints,6 it is clear
that the alleged coercion or harassment was caused by
Taliercio’s alleged statement that unless the employees
signed a union card they would lose all their seniority and
not be able to join the Union. I find such alleged threat to
be amorphous, ambiguous, and virtually meaningless. For ex-
ample, I am unable to determine what seniority was being
referred to, or which Union the employees would not be able
to join. The employees’ complaints as a whole are directed
to Taliercio’s attempts to solicit the employees to sign a card
on behalf of the Union. I find that Taliercio’s actions, as set
forth in the employees complaints constitute protected and
concerted activity. Section 7 of the Act provides that em-
ployees have the right to solicit other employees to join a
labor organization. The Board has held that only under ex-
treme circumstances will union or concerted activity lose the
Act’s protection. Such circumstances include a public dispar-
agement of an employer’s product, a strike in breach of a
collective-bargaining agreement, conduct that contravenes the
basic policies of the Act, or violence, YMCA of Pikes Peak
Region, 291 NLRB 998 (1988). I conclude that the alleged
solicitations by Taliercio constitute activity protected by Sec-
tion 7 of the Act.
The complaint alleges that Respondent’s conduct in initiat-
ing arbitration proceedings seeking the discharge of Taliercio
constitutes 8(a)(1) conduct. However, there is an 8(a)(3) as-
pect to this allegation in that such conduct constitutes the
first step in a clear and unmistakable attempt to terminate
Taliercio. The Board has held that where the sole reason for
discharging an employee is his concerted activity, an analysis
under Wright Line, 251 NLRB 1083 (1980), is not required;
Circle K Corp., 305 NLRB 932, 934 (1991). Since I have
concluded that the sole reason for seeking arbitration pro-
ceedings seeking the discharge of Taliercio is because he en-
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The complaint herein did not allege Respondent’s conduct set
forth and discussed as violative of Sec. 8(a)(3) of the Act.
gaged in protected concerted activity, I find such activity un-
lawful and in violation of Section 8(a)(1) of the Act.7
It is alleged that Respondent violated Section 8(a)(1) and
(3) of the Act by discharging its employee Scott. In deter-
mining whether Respondent violated the Act as alleged, Gen-
eral Counsel has the burden of proving that Scott’s union ac-
tivities were a motivating factor in Respondent’s action.
Once such factor is established, the burden shifts to Re-
spondent to establish that the same action would have taken
place in the absence of such union activity. Wright Line,
supra; NLRB v. Transportation Management Corp., 462 U.S.
393, 398 (1983).
In the instant case, General Counsel has established that
Scott attended several union meetings with other employees,
that Respondent’s supervisor, Stapleton, interrogated Scott
and threatened him with discharge if he continued his activi-
ties on behalf of the Union. Scott was discharged several
days following Respondent’s interrogation and threat to dis-
charge him. Thus the timing is suspicious. I conclude such
evidence establishes that Scott’s union activities were a moti-
vating factor in his discharge.
The facts establish that Scott was terminated when he
failed to report an accident he had while driving his truck.
It wasn’t the accident itself that precipitated the termination,
but rather Scott’s failure to report the accident, coupled with
his denial of being aware of the accident when confronted
with his failure to report it by Jacobson. Jacobson did not
believe that Scott was unaware of the accident, neither did
I. Scott and other employees, including Taliercio, had been
involved in other accidents and were not disciplined by Re-
spondent. I conclude that Scott was terminated based upon
Respondent’s accurate conviction that he was an untruthful
and untrustworthy employee. The Board has upheld the dis-
charges of principle union activists where it was found that
the reason for their discharge was a betrayal of the employ-
er’s trust, Arlington Hotel Co., 278 NLRB 26 (1986); Mis-
sion Valley Ford Truck Sales, 295 NLRB 889 (1989).
General Counsel contends that Respondent offered shifting
reasons for Scott’s termination. In the letter notifying Scott
of his termination, Respondent set forth as an additional rea-
son for his termination Scott’s subsequent failure to notify
his dispatcher of a weekend return of 43 cases of perishable
fruit juices so that the juices could be refrigerated. His fail-
ure to follow established procedure resulted in the spoilage
of all cases. It appears clear to me, as explained by Jacobson
during his testimony, that he could, and would have, dis-
charged Scott for either one or both reasons, set forth in
Scott’s discharge letter and that moreover, upon being pre-
sented with Scott’s personal file during the course of his tes-
timony, he concluded that he could have also set forth an-
other trailer accident that Scott had on April 30, prior to his
failure to report the instant accident. I do not find such testi-
mony to constitute shifting reasons for Scott’s discharge, but
rather, gratuitous additional reasons. In this regard, at the
time Jacobson confronted Scott about his failure to report the
trailer accident, he informed Scott that he was suspended im-
mediately, and that he would in all probability be discharged.
I conclude that it was Scott’s failure to report an accident
that he had to be aware of, that precipitated his discharge.
I also conclude that Respondent has established that such dis-
charge would have taken place in the absence of Scott’s
union activity.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices within the meaning of the Act, I shall
recommend that it cease and desist therefrom, and take cer-
tain affirmative action to effectuate the policies of the Act.
I have concluded that Respondent violated Section 8(a)(1)
of the Act by initiating arbitration proceedings seeking the
discharge of Taliercio. The evidence established that Re-
spondent’s, Attorney Pollack, wrote a letter to Local 6 seek-
ing such arbitration. the arbitration was never held because
Taliercio subsequently filed a workman’s compensation
claim. Nevertheless, I conclude that the appropriate remedy
in connection with this violation would be to require Re-
spondent to withdraw such letter.
I have concluded that Respondent violated Section 8(a)(1),
(2), and (3) by recognizing and thereafter entering into a col-
lective-bargaining agreement with Local 6 and thereafter en-
forcing union-security and dues-checkoff provisions at a time
when Local 6 did not represent an uncoerced majority of Re-
spondent’s employees. Therefore, I shall recommend that Re-
spondent withdraw and withhold recognition from Local 6
and cease enforcing the terms of its collective-bargaining
agreement with Local 6 and to reimburse its employees for
all dues collected and remitted to Local 6 with interest as set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union and Local 6 are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (2) of the Act,
by recognizing and bargaining with Local 6 as the exclusive
collective-bargaining representative of its drivers at Respond-
ent’s Brooklyn facility at a time when Local 6 did not rep-
resent an uncoerced majority of Respondent’s employees.
4. Respondent violated Section 8(a)(1), (3), and (5) of the
Act by enforcing and maintaining a collective-bargaining
agreement with Local 6 containing a union-security clause
and a check-off provision at a time when Local 6 did not
represent an uncoerced majority of Respondent’s employees.
5. Respondent violated Section 8(a)(1) and (2) of the Act
by soliciting its employees covered by the Local 6 collective-
bargaining agreement, described above, to execute Local 6
membership and dues-checkoff cards.
6. Respondent violated Section 8(a)(1) and (3) of the Act
by threatening the employees covered by the Local 6 collec-
tive-bargaining agreement, described above, with discharge if
they did not sign Local 6 membership and dues-checkoff
cards.
7. Respondent violated Section 8(a)(1) of the Act by inter-
rogating its employees concerning their membership in or ac-
tivities on behalf of the Union.
8. Respondent violated Section 8(a)(1) of the Act by
threatening its employees with discharge because of their
membership in or their activities on behalf of the Union.
1319GROCERY HAULERS, INC.
9. Respondent violated Section 8(a)(1) of the Act by initi-
ating arbitration proceedings seeking the discharge of its em-
ployee, Vincent Taliercio, because of his membership in or
activities on behalf of the Union.
[Recommended Order omitted from publication.]