Groves Truck And Trailer

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1194 (N.L.R.B. 1986)

1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alaska Cummins Services , Inc. d/b/a Groves Truck
and Trailer and Alaska Petroleum Joint Crafts
Council . Case 19-CA-12263
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 29 May 1981 Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,I and
conclusions2 only to the extent consistent with this
Decision and Order.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect 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
We correct the judge's inadvertent error in the last paragraph before
"B Analysis and Conclusions" where he said that "[b]y April I Respond-
ent had completely closed down its operations." We find that he meant
to add at the end of that sentence "at Shop 2 " We also correct the third
sentence in the Analysis and Conclusions subparagraph "b" entitled "Did
Groves interrogate job applicants about their union affiliations " The
second reference to "Barker" should instead be "Groves" so as to read
"Groves responded that they would be hiring but the job would be non-
union " We also note that the judge incorrectly referred to the corpora-
tion , Alyeska, as a "consortium of contractors building the Alaska pipe-
lines " In its cross -exceptions to the Board , the General Counsel pointed
out the error We take notice of prior proceedings before the Board
(Cases 19-RC-7641 and 19-RC-7710) involving the same corporation
and find that "Alyeska" is a corporation known as Alyeska Pipeline
Service Co that operates the Trans Alaska Pipeline System
In addition , we note that the judge, in his introductory remarks in sec
III,B , I,g of his decision, somewhat mischaractenzed the proper test for
determining whether an individual is a supervisor within the meaning of
the Act The judge delineated the powers determinative of supervisory
status pursuant to Sec 2 ( 11) He then stated "[h]owever, possession
alone, of one of these powers does not suffice to confer supervisory
status Rather, supervisory status exists only if the power is exercised
with independent judgment on behalf of management , and not in a rou-
tine or clerical manner " To the extent the judge intended to emphasize
the individual 's independence, his statement is accurate However, the
statement erroneously suggests that an individual must actually exercise
the given authority to qualify as a supervisor In this regard, we note that
the Act clearly specifies that it is the authority to act independently that
is determinative rather than the exercise of that authority NLRB Y.
Brown & Sharpe Mfg Co, 169 F 2d 331 (1st Cir 1948), Hook Drugs, Inc,
191 NLRB 189, 191 (1971)
2 In adopting the judge 's conclusion that the Respondent did not vio-
late Sec 8(a)(5) of the Act , we find it unnecessary to rely on his citations
at In 50 of his decision
In adopting the judge's conclusion that the Respondent unlawfully laid
off and terminated certain employees and thereafter refused to reinstate
them, we note the Respondent's contentions that some of these employ-
ees have been offered reinstatement We leave to the backpay stage of
these proceedings the resolution of this issue
The facts are set forth in greater detail in the
judge's decision. The Respondent operates a truck
repair business. James Groves is the manager, and
Joe Blackard is chief executive officer and owner.
In January 19803 the Respondent received a large
open-ended contract to service the vehicles and
equipment for the company operating the Trans
Alaska Pipeline System, Alyeska. The Alyeska
work was scheduled to begin 1 February. The Re-
spondent anticipated the Alyeska work would con-
stitute 30-50 percent of its workload.
On 21 January a fire destroyed much of the Re-
spondent's shop and equipment. After the fire, the
Respondent leased a nearby facility to handle the
Alyeska business. It also repaired the original shop,
shop 1, for its other work. For the leased facility,
shop 2, it hired additional employees. The Re-
spondent's employees at both shops signed union
authorization cards in February, and about 29 Feb-
ruary the Respondent was served with a represen-
tation petition. It is against this backdrop that the
Respondent committed numerous violations of the
Act.
1. The judge dismissed an allegation that the Re-
spondent violated Section 8(a)(1) of the Act when,
about 7-10 days after Charles Buchanan signed a
union card, Supervisor Groves said to him, "I un-
derstand you're not happy here" and, despite Bu-
chanan's denial, continued with "if I was as unhap-
py as it sounds like you are, I would leave." The
General Counsel excepts. We find merit in this ex-
ception.
The judge found the remarks might not be un-
lawful because he found that Groves may have
made those comments in response to an earlier
statement Buchanan made to other employees that
Chief Executive Officer Blackard was "a cheap son
of a bitch." (The judge found the other reason that
may have motivated Groves' comments was that
Groves learned Buchanan had signed a union card.
The judge determined that if the union card pro-
voked Groves' statements, the Respondent violated
the Act.) Because he deemed Buchanan's statement
insubordinate, the judge found that if Groves' re-
marks were made in response to that statement
they would not violate the Act. He further found
that there was no way to ascertain what prompted
Groves' remarks. We disagree that Buchanan's
statement about Blackard amounted to insubordina-
Member Babson finds it unnecessary to decide whether Fowler's state-
ment to employees Comeau and Burkhart violated the Act because he
finds Fowler's analogous statement to Qualls was in violation of the Act
Member Babson also notes that the Respondent does not except to the
judge's finding that Groves ' statement to Barker was related to the com-
plaint's allegations and was fully litigated but excepts to whether the
statement on the merits was an unfair labor practice
9 All dates are in 1980
281 NLRB No. 161
GROVES TRUCK & TRAILER
tion. Buchanan addressed his comment about the
chief executive officer's stinginess only to other
employees and not to its target; he made it while
employees were on a coffeebreak; and he did not
accompany it with any threat. We thus find that
Buchanan's comment constituted concerted activity
protected by the Act. Accordingly, Groves' re-
marks were unlawful regardless of whether Groves
was motivated by the signing of the card or by Bu-
chanan's statement about Joe Blackard as in either
case the remarks were motivated by protected con-
certed activity. Therefore, we find that Groves' in-
quiry why Buchanan continued to work for the
Respondent constituted an implied threat of retalia-
tion in violation of Section 8(a)(1) of the Act.
2. In mid-January, the Respondent told employ-
ees it was considering changing its medical insur-
ance carrier. In March, the Respondent told em-
ployees it could no longer consider the change be-
cause of the pending representation petition. In
May, however, the Respondent advised employees
it would change insurance companies. The judge
found the Respondent's March announcement vio-
lated Section 8(a)(1) because it was improper to
alter employees' benefits based on union activity.
He found the May announcement also violated
Section 8(a)(1) because it was designed to show
employees that a union would be powerless to help
them get benefits. We agree with the judge's find-
ing regarding the March announcement . If, as here,
in the normal course of events, a change of benefits
would have occurred, the mere pendency of a
question concerning representative does not impede
the implementation of the change and an employer
who withholds such a change due to the union's
presence violates the Act. Montgomery Ward & Co.,
225 NLRB 112 (1976). However, we disagree with
the judge's finding that the May announcement
violated Section 8(a)(1). In May the Respondent at-
tempted to rectify the situation by doing what it
should have done all along-that is, adhere to its
original plan. We do not find this attempt to right a
previous wrong (in the absence of an unlawful
motive) to be unlawful. To hold otherwise would
place employers in the untenable position of being
barred from any corrective action once a wrong
step was taken during the pendency of a represen-
tation matter. Accordingly, we shall dismiss that
part of the complaint that alleges the Respondent's
May announcement violated Section 8(a)(1) of the
Act.
3. Union activist Melvin Barker quit after the
Respondent's manager accused Barker of being a
"plant" the Union sent to stir up trouble for the
1195
Respondent,4 and shortly after the Respondent's
chief executive officer held a meeting at shop 2 at
which he expressed opposition to the Union, told
employees the Respondent could not pursue its
plan to implement profit-sharing, pension, and med-
ical benefit plans because of the pending represen-
tation petition, 5 and said the Respondent would
probably close shop 2. After the meeting Barker
phoned his previous employer, asked for, and was
given a job. The next day, 12 March, Barker quit.
Later in March the Respondent laid off most of the
shop 2 employees. The judge found the Respond-
ent violated Section 8(a)(3) by constructively dis-
charging Barker. We find merit in the Respond-
ent's exception to this finding.
To establish a constructive discharge the General
Counsel must prove two elements, first that the
employer imposed intolerable work conditions
compelling the employee to leave his or her job,
and second that the employer imposed the condi-
tions because of the employee's union activity. Al-
greco Sportswear Co., 271 NLRB 499 (1984); Crystal
Princeton Refining Co., 222 NLRB 1068, 1069
(1976).
The judge concluded that (a) when the Respond-
ent announced it planned to close shop 2, Barker
could reasonably have feared he would be dis-
charged on its closure, and (b) in creating Barker's
fear the Respondent imposed intolerable working
conditions for him. The judge found that the
second element was satisfied by the Respondent's
remark accusing Barker of being a union "plant,"
as well as by the subsequent unlawful layoffs.
While the Respondent's 11 March announcement
that it expected to close shop 2 was clearly intend-
ed to erode support for the Union, and constituted
a threat in violation of Section 8(a)(1) of the Act, it
does not rise to the level of constituting intolerable
working conditions. A threat to close a business, or
part of it, is only a threat of some future action
which may or may not be carried out. It may be
nothing more than an unlawful bluff for which the
Act provides an appropriate and direct remedy.
Central Casket Co., 225 NLRB 362 (1976). Unless
and until an employer carries out that threat, em-
ployees' working conditions remain static. An em-
ployee may file charges with the Board in response
to an employer's threat, but no matter how reason-
able an employee's feeling of insecurity may be as a
result of an employer's plant closure threat, it does
not permit the employee to elevate, unilaterally,
4 We adopt the judge's finding that this comment to Harker violated
Sec. 8(a)(1).
We adopt the judge's finding that the Respondent's modifications of
employee benefits because of the pending representation petition violated
Sec. 8(ax l ).
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the significance of that unlawful activity. Thus, the
resultant insecurity does not empower an employee
to convert a plant closure threat unlawful under
Section 8(a)(1) into an unlawful discharge.6
The judge erred in concluding that the Respond-
ent's threat to close shop 2 made Barker's working
conditions sufficiently oppressive to compel him to
leave his job. Barker quit on his own initiative.
Therefore, Barker is not entitled to relief under the
Act for his hasty self-help action, and we shall dis-
miss that part of the complaint that alleges his de-
parture violated Section 8(a)(3) of the Act.
4. The judge found, and we agree, that the Re-
spondent's unfair labor practices are best remedied
by a bargaining order. In NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969), the Supreme Court ap-
proved the Board's use of bargaining orders as
remedies in cases marked by substantial employer
misconduct which has the "tendency to undermine
[the Union's] majority strength and impede the
election process.? We find that the Respondent's
misconduct in this case has such a tendency.
On 25 February 10 of the 16 unit employees
signed union authorization cards. On 27 February
the Union filed a representation petition which was
served on the Respondent on 29 February. Within
the period of little more than a month thereafter,
the Respondent interrogated two job applicants
about their union affiliation; told unit employees
that no scheduled pay raises would be given until
the union question was settled; told all unit em-
ployees at meetings held during worktime that pre-
viously planned changes in profit-sharing, pension,
and medical benefits plans could not be pursued
while the Union's petition was pending; solicited
grievances at employee meetings; threatened to
deny the previously available benefit of using com-
pany equipment to work on personal vehicles if the
Union were selected; threatened to close one of its
shops and lay off the employees because of union
activity; and discriminatorily closed one of its
shops and laid off six employees, nearly 40 percent
of the bargaining unit.
The swiftness and timing of the Respondent's
misconduct (occurring within a month of its offi-
cial notice of the Union's presence) highlighted the
severity of the penalty the Respondent was pre-
pared to impose for union support. The unlawful
8 The Board has found employees constructively discharged when in
retaliation for union activity an employee "quit" after an employer actu-
ally changed working conditions National Wholesale Co, 244 NLRB 187
(1979) (employee 's medical insurance eliminated), Project Aid, 240 NLRB
743, 750 (1979) (employee's freedom to communicate with fellow em-
ployees and move about work station restricted), Kent Corp, 212 NLRB
595, 611 (1974) (changed work hours), National Grange Mutual Insurance
Co., 207 NLRB 431 (1973) (employer dictated a transfer).
Member Babson finds it unnecessary to rely on these cases
7 395 U S at 614
threats of plant closure and job loss, standing
alone, are highly coercive, particularly when di-
rected against such a small unit of employees.
These threats coupled with actual partial plant clo-
sure and the layoff of nearly 40 percent of the bar-
gaining unit showed all unit employees the Re-
spondent's willingness to carry out its threats and
the lengths to which it was willing to go to pre-
vent unionization.
The Board has long held, with court approval,
that unlawful discharge or layoff is one of the most
flagrant and severe acts an employer can take to
dissuade employees from selecting a bargaining
representative.8 Here, the effects of the threats and
actions can reasonably be expected to have linger-
ing impact where almost 40 percent of the unit un-
lawfully lost employment in a labor market which,
the judge found, is relatively small. In addition to
the six employees who lost their jobs, all unit em-
ployees were subjected to the threats of plant clo-
sure and layoff, the assertions that no pay raises
could be given or planned changes in benefits made
until the representation question was settled, and
the solicitation of grievances. There can be no
question, therefore, that the Respondent's miscon-
duct was extensive and pervasive. The swiftness,
severity, and extent of the Respondent's reaction to
union activity make it highly likely that the effects
of the misconduct will linger and continue to
impede holding a fair election. In these circum-
stances, we find that the traditional cease-and-desist
order and authorization of a representation election
will not eradicate the lingering effects of the Re-
spondent's unfair labor practices or deter their re-
currence.9
In so finding, we recognize that the misconduct
involved in this case occurred in 1980. When we
consider, however, the serious nature of the con-
duct which consisted of threats of plant closure
and layoffs, discriminatory partial plant closure,
and layoff of almost 40 percent of the unit, denial
of pay increases and planned changes in benefits
during the pendency of the representation matter,
and the solicitation of grievances, all within the
span of a month, we are convinced that the mere
passage of time cannot easily dissipate the effects of
such conduct. The passage of time, though regret-
table, is not a sufficient basis for denying a bargain-
ing order.10 Accordingly, we adopt the judge's
8 See, e g , Doug Hartley, Inc., 255 NLRB 800 (1981), and NLRB v.
Entwistle Mfg Co, 120 F 2d 532 (4th Cir 1941)
8 Quality Aluminum Products, 278 NLRB 338 (1986), Marion Center
Supply, 277 NLRB 262 (1985), Thnftway Supermarket, 276 NLRB 1450
(1985); Regency Manor Nursing Home, 275 NLRB 1261 (1985)
10 Quality Aluminum Products, supra, Exchange Bank, 264 NLRB 822,
824 fn 13 (1982).
GROVES TRUCK & TRAILER 1197
recommended issuance of a bargaining order in this
case, and order the Respondent to recognize and
bargain, on demand , with the Union as of 29 Feb-
ruary 1980, the date the Respondent began its un-
lawful antiunion campaign . Peaker Run Coal Co.,
228 NLRB 93 (1977).11
AMENDED CONCLUSIONS OF LAW
1. Add the following as paragraph 3(i) after Con-
clusions of Law 3(h).
"(i) Coercively threatening an employee with re-
taliation if he continued to work at the Respond-
ent's shop because of union activities."
2. Delete the name "Melvin Barker" from para-
graph 4.
ORDER
The National Labor Relations Board orders that
the Respondent, Alaska Cummins Services, Inc.,
d/b/a Groves Truck and Trailer, Fairbanks,
Alaska, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating job applicants con-
cerning their union activities and sympathies.
(b) Canceling previously scheduled pay raises for
two or more employees because of union activities.
(c) Threatening its employees with harsher
working conditions if they continue to support or
assist the Union.
(d) Coercively telling an employee attempting to
organize a union that he was a "plant" sent in by
the Union and a business competitor to disrupt the
Respondent's business.
(e) Threatening through its statutory supervisor,
Fowler, that the Respondent would close down
part of its business due to employee union activities
and, in a separate statement , that all employees in
shop 2, save one, would be laid off.
(f) Soliciting employees' grievances and implied-
ly promising that such grievances will be adjusted
for the purpose of influencing their selection of a
labor organization as their bargaining representa-
tive.
(g) Threatening employees with loss of pay
raises and increased benefits due to union activities.
(h) Coercively threatening employees with retal-
iation if they continue to work for the Respondent
because of union activities.
(i) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer William Gilpin, Charles Buchanan,
Norman Stapleton, Rex Vandermeer, Larry
Glover, and Afton Clifford immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination
against them , in the manner set forth in the remedy
section of the decision.
(b) Make Patrick Comeau, William Gilpin,
Charles Buchanan, Norman Stapleton, Rex Van-
dermeer, Larry Glover, and Afton Clifford whole
for any loss of pay which they may have suffered
by reason of the discrimination against them, in ac-
cordance with the recommendations set forth in
the remedy section of this decision.
(c) On request, bargain with Alaska Petroleum
Joint Crafts Council as the exclusive representative
of the employees in the appropriate unit set forth
below, with respect to rates of pay, wages, hours,
and other terms and conditions of employment and,
if an understanding is reached, embody the under-
standing in a written signed agreement:
All employees of Alaska Cummins Services,
Inc. d/b/a Groves Truck and Trailer, em-
ployed in Fairbanks, Alaska, as mechanics, me-
chanic helpers, welders, oilers, parts men, tire
men, expediters, driver and swampers (sweep-
ers), excluding office clerical employees, sales-
men, guards and supervisors as defined in the
Act.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.
(e) Remove from its files and records any and all
documents reflecting layoffs, discharges, or other
separation for the employees listed in paragraph
2(a) above.
(f) Post at its Fairbanks, Alaska facility copies of
the attached notice marked "Appendix."12 Copies
" In recommending the appropriate remedy for the Respondent's
unfair labor practices, the judge neglected to specify that Patrick Comeau 12 If this Order is enforced by a judgment of a United States court of
shall receive relief for the Respondent 's unlawful denial of his promised appeals, the words in the notice reading "Posted by Order of the Nation-
pay raise . We direct the Respondent to make Comeau whole for the loss al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
of pay, plus interest , he suffered by reason of the discrimination against the United States Court of Appeals Enforcing an Order of the National
him Labor Relations Board."
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the notice, on forms provided by the Regional
Director for Region 19, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent 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 ordered us to post and abide by this notice.
WE WILL NOT coercively interrogate job appli-
cants concerning union membership, activities, and
support.
WE WILL NOT cancel your previously scheduled
pay raises because of your union activities.
WE WILL NOT threaten you with harsher work-
ing conditions because of your union activities,
membership, or support.
WE WILL NOT accuse any of you of attempting
to organize a union, or of being a plant sent in by
the Union and a business competitor to disrupt our
business.
WE WILL NOT threaten you with a partial shut-
down of our business nor with layoffs or termina-
tions because of your support for the Union.
WE WILL NOT solicit grievances from you and
imply that such grievances will be adjusted.
WE WILL NOT threaten you with loss of pay
raises and increased benefits because of your union
activities.
WE WILL NOT coercively threaten you with re-
taliation if you continue to work for our business
because of your union activities.
WE WILL NOT discourage membership or activi-
ties on behalf of Alaska Petroleum Joint Crafts
Council, or any other labor organization, by laying
off, terminating, discharging, or otherwise discrimi-
nating against you for supporting a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer William Gilpin, Charles Buchan-
an, Norman Stapleton, Rex Vandermeer, Larry
Glover, and Afton Clifford immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits resulting from their layoff and/or termina-
tions, plus interest.
WE WILL make Patrick Comeau whole for the
loss of earnings resulting from the unlawful denial
of his pay raise, plus interest.
WE WILL notify William Gilpin, Charles Bu-
chanan, Norman Stapleton, Rex Vandermeer,
Larry Glover, and Afton Clifford that we have re-
moved from our files any reference to their dis-
charges and that the discharges will not be used
against them in any way.
WE WILL , on request, bargain collectively with
Alaska Petroleum Joint Crafts Council as the ex-
clusive representative of the following bargaining
unit employees:
All employees of Alaska Cummins Services,
Inc. d/b/a Groves Truck and Trailer, em-
ployed in Fairbanks, Alaska, as mechanics, me-
chanic helpers, welders, oilers, partsmen, tire
men, expediters, driver and swampers (sweep-
ers), excluding office clerical employees, sales-
men, guards and supervisors as defined in the
Act.
ALASKA CUMMINS SERVICES, INC.
D/B/A GROVES TRUCK AND TRAILER
James C. Sand, Esq., for the General Counsel.
Joseph W. Sheehan, Esq., of Fairbanks, Alaska, for the
Respondent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Fairbanks, Alaska, on
January 27, 28, and 29,1 pursuant to an amended com-
plaint and notice of hearing issued by the Regional Di-
rector for the National Labor Relations Board for
Region 19 on December 1, 1980,2 and which is based on
a charge filed by Alaska Petroleum Joint Crafts Council
(the Union) on April 1 (original charge) and May 29
(amended charge). The complaint alleges that Alaska
Cummins Services, Inc. d/b/a Groves Truck and Trailer
(Respondent) has engaged in certain violations of Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act).
i The caption of the case is changed to reflect the correct name as
agreed by the parties at hearing (R. Br 52-53 )
2 All dates refer to 1980 unless otherwise indicated.
GROVES TRUCK & TRAILER
ISSUES
1. Whether in order to discourage support for the
Union, Respondent did any or all of the following in vio-
lation of the Act.
(a) Interrogated job applicants about their union affili-
ation.
(b) Told employees that previously scheduled pay
raises would be postponed until issues regarding the
Union were settled.
(c) Interrogated employees about their support for the
Union.
(d) Threatened the closing of shop 2 as a response to
union organizing activity.
(e) Promised improvements in or establishment of
better fringe benefit programs.
(f) Solicited grievances from employees and promised
remedies thereto.
2. Whether employees Fowler and Adkins are statuto-
ry supervisors.
3. Whether Respondent constructively discharged em-
ployee Mel Barker and directly terminated employees
Buchanan, Gilpin, Stapleton, Vandermeer , Glover, and
Clifford in order to erode support for the Union.
4. Whether Respondent had a duty to bargain with the
Union over its decision to close shop 2 and transfer work
performed therein to shop 1 and , if so, whether the duty
was breached in violation of the Act.
5. If Respondent committed all or some of the above
acts, whether a bargaining order is appropriate.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses , to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.3
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor , I make the
following
a In addition to his 53-page brief, the General Counsel has filed a
"Motion for Reconsideration of Evidentiary Ruling" and "Memorandum
of Law in Support of Motion for Reconsideration of Evidentiary
Ruling." In this motion , the General Counsel asks me to reconsider a
ruling made at hearing wherein I denied his offer of the affidavits of
James Groves and Joseph Blackard , two of Respondent 's executives.
These documents were used in a 1978 Board proceeding , which was set-
tled. The General Counsel contends that the two witnesses had lied in
this earlier proceeding and were truthful in the instant proceeding. (R.
Br. 562.) Even if the statement in the affidavits were directly contradicto-
ry to the testimony at hearing , an issue I need not determine , the collater-
al and remote nature of the 1978 statements to the issues in this hearing
completely outweigh any probative value on the issue of credibility. Fur-
ther, the General Counsel does not mention in his memorandum an issue
that would necessarily arise as a consequence of admitting the affidavits;
whether the record would need to be reopened for Respondent to explain
or rebut the affidavits . Perhaps Groves and Blackard would have to be
recalled . Perhaps their attorney at the prior proceeding or some other
witness would need to be called . Also, does the fact that the earlier case
was settled with a nonadmission clause affect the issues herein . In consid-
enng these matters , which are not meant to be exhaustive-together with
the fact that the record contains an ample basis on which to make credi-
bility resolution-I am more convinced than ever that the General Coun-
sel's motion should be and is denied.
FINDINGS OF FACT
1199
I. RESPONDENT 'S BUSINESS
Respondent admits that it is an Alaska corporation en-
gaged in the business of servicing and repairing diesel
trucks and equipment and having an office and place of
business located in Fairbanks, Alaska. It further admits
that during the past year, in the course and conduct of
its business, it has sold and shipped goods or provided
services valued in excess of $50,000 to customers outside
the State of Alaska , or sold and shipped goods or pro-
vided services to customers within the State, which cus-
tomers were themselves engaged in interstate commerce
by other than indirect means, of a total value in excess of
$50,000. Accordingly, it admits, and I find, that it is an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that Alaska Petroleum
Joint Crafts Council is a labor organization within the
meaning of Section 2(5) of the Act.4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
James Groves is the manager of Respondent, a busi-
ness incorporated in 1979 . Prior to this, Groves was em-
ployed by Groves Truck & Trailer, a business owned by
Joe Blackard . Groves and Blackard have had a business
relationship since April 1977. Respondent is owned by
Dan Blackard, son of Joe Blackard . The former did not
testify at the hearing and played little or no role in the
facts of this case . Joe Blackard (Blackard) lives and
works in Anchorage , but visits Fairbanks about four
times a month in his role as adviser and chief executive
officer of Respondent.
Respondent operates its business from a shop owned
by Blackard and located in Fairbanks . Respondent re-
pairs trucks and heavy machinery, including diesels. It
also does warranty work for Cummins , a manufacturer
of diesel machinery . In this connection, Respondent
maintains an extensive parts inventory of Cummins parts.
It also works on other machinery and trucks, large and
small, gas and diesel for companies such as Caterpillar,
Kenworth, and others . This business is essentially the
same as that performed under the prior name, at the
same location, but now with the Cummins warranty
work. Cummins had closed its own operation some time
in 1979 as a profitable venture . Its vacant shop was lo-
cated about 1-1/2 miles away from Respondent's and
would play a major role in this case as shop 2. However,
other events need to be related first.
Shop 1 was described as about 50 by 190 feet and had
room for approximately 15 rigs or pieces of equipment to
be serviced at the same time. Outside there was a large
4 Respondent originally filed a general denial to the amended com-
plaint. Subsequently , at the hearing it agreed to and did admit jurisdiction
and the Union's status as a labor organization. (R. Br. 19.)
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area for equipment waiting to be repaired or awaiting
shipment of proper parts. In the fall of 1979, Respondent
employed about 14 persons, of whom about 7 were me-
chanics or mechanics' helpers. Respondent felt it was ca-
pable of expanding operations and decided to bid for the
Alyeska business.
Alyeska was a consortium of contractors building the
Alaska pipelines. Sometime in late 1979, it announced
that it would accept bids from companies desiring to do
its equipment repair on a regular basis. Respondent pre-
pared such a bid, and in early to mid-January Respond-
ent learned that it was low a bidder and that its facilities
had been approved by Alyeska as capable of performing
the expected volume of work. A few days after receiving
this information, Respondent called a meeting to tell its
employees that it had received the Alyeska contract set
to begin on February 1, and that Respondent would be
expanding its operations to handle the expected increased
volume.
During this meeting certain employees voiced com-
plaints relating to problems with collecting reimburse-
ment for medical expenses. Groves stated that Respond-
ent was exploring the possibility of changing medical in-
surance carriers. In addition, Respondent announced that
it was considering a new profit-sharing and pension plan
which it did not previously have. No details were given
nor promises made concerning when this might occur. A
few days after this meeting , Respondent experienced a
ruinous fire.
On January 21, a fire virtually destroyed the interior
of Respondent's premises. In addition to causing approxi-
mately $200,000 damage-of which slightly over 50 per-
cent was ultimately reimbursed through insurance pro-
ceeds-Respondent's ability to undertake the Alyeska
contract was severly impaired. It was forced to close its
operation for approximately 2 weeks. All its employees
were reassigned from their normal activities to cleanup
duties. This involved salvaging as much of the tools,
parts, and equipment as possible and the refurbishing of
Respondent's premises. A painting contractor was
brought in to help in this work.
Due to this fire, Respondent feared that it would be
unable to meet its obligations under the Alyeska con-
tract. Accordingly, it sought additional facilities while
the cleanup continued at the original site . About one-half
mile down the road stood the old Cummins Northwest
shop, which had been closed for some time due to poor
financial conditions in Fairbanks. Respondent entered
into a month-to-month oral lease effective February 1 for
these facilities. The plan was to perform primarily the
Alyeska work at these facilities (shop 2) and to perform
primarily the Cummins warranty work and other work
at the original shop (shop 1), once the cleanup was com-
pleted. With some overlay in work assignments, the plan
endured until shop 2 was closed about April 1.
Respondent began its operations at shop 2 on February
1. Shop 2 was considerably smaller than shop I and
lacked room for a separate parts department as main-
tained in shop 1. The foreman at shop 1 was George
Fowler, who was responsible directly to Groves. At
shop 2, a person named Delbert Delaney was foremen
for a short while, but then left Fairbanks due to a medi-
cal problem. He was replaced by William Gilpin, whose
title was lead mechanic, and by Joel Adkins, who started
with Respondent as a parts man in August 1979. After
shop 2 opened, he was assigned there primarily to expe-
dite the voluminous paper work generated by the
Alyeska contract. While Respondent was coping with
the results of the unexpected fire and attempting to begin
operations at shop 2, another unexpected event was oc-
curring.
Melvin Barker, an experienced mechanic, was hired by
Respondent in February and assigned to shop 2. While
there, he became dissatisfied with conditions and began
to circulate union cards to employees at shop 2. He also
gave several cards to Patrick Comeau, another experi-
enced mechanic, employed at shop 1. Both employees
circulated these cards to employees and most were
signed and returned to Barker and Comeau. Ultimately
the signed cards were conveyed back to the Union and
to the Board. About February 29, a representation peti-
tion was served on Respondent.5
On March 10 and 11, Respondent held meetings with
its employees in shops 1 and 2, respectively. They were
addressed by a man named Mike Devich, sometimes
hereafter referred to as "the man from Anchorage."
These meetings will be considered in detail below. For
now it suffices to say that among other matters discussed
were profitsharing, pensions, medical benefits, and pay
raises . In addition, Blackard announced to employees at
shop 2 that Respondent would probably have to close
shop 2 due to high overhead costs and declining reve-
nues. No mention of layoffs was made at this time. At
the hearing, Respondent presented testimony of Harold
Alexander, an Alyeska official, that the volume of ex-
pected repair business had remained considerably lower
than anticipated when bids were let in January.
In any event, by mid-March, Respondent did lay off
several employees, terminated one for alleged poor
work, and one quit under conditions alleged by the Gen-
eral Counsel to be a constructive discharge. By April 1,
Respondent had completely closed down its operations.
Later, Respondent opened a new shop 2 (shop 3), insti-
tuted a night shift at shop 1, and hired additional em-
ployees, all of which, it is argued, is evidence of unlaw-
ful motive. These contentions and facts will be further
considered below.
B. Analysis and Conclusions
1. The independent 8(a)(1) violations
a. Introduction
I have attempted to provide in "The Facts" a general
framework of the events in this case. To avoid unneces-
sary duplication, much detail was omitted. However,
these additional facts will be provided as necessary in a
s The General Counsel asserts in his brief that this date was never es-
tablished with certainty However, I find that considering the General
Counsel 's statement at hearing made without objection (R Br 154) (that
the petition was received on February 29) and the testimony of Groves
on this point (R Br. 71) that this important date can be fairly established
Whether this official notice was the first notice to Respondent of employ-
ee union activity will be considered below
GROVES TRUCK & TRAILER
description of the various allegations . I begin with the
critical date of February 29 when Respondent first re-
ceived official notice of the union activity in this case.
Before moving ahead to the two meetings in issue, I will
briefly review the important events that occurred prior
to this date.
First, Groves admitted in his testimony that he had
heard rumors of union activity 7-10 days before receiv-
ing a copy of the petition. Although he could not recall
who made the remark , someone told him he was going
to have union problems . To this, Groves allegedly made
no reply. I find it incredible to believe that Groves
would receive this information and not press for further
details. Fairbanks was a town heavily represented with
union members because many persons had been em-
ployed on the Alyeska pipeline, where union member-
ship was required . Respondent did not pay union scale to
its mechanics, but rather paid based on Groves' evalua-
tion of a particular applicant's prior experience . Thus, it
was important for Respondent to remain alert for evi-
dence of union activity if they desired to remain non-
union. There is abundant evidence that Respondent did
desire to remain nonunion.
It is reasonable to believe that Groves did receive
prior notice of union activity-the two shops were rela-
tively small in size and the employees were on a casual
and informal basis with Groves. Each day he made sev-
eral trips back and forth between them . Moreover,
Barker began his union activity circulating union authori-
zation cards about the third week in February. Barker
signed his own card about February 25. Thus, I fmd that
Groves knew of union activity at least a few days before
receiving official notice. This leads into the discussion of
the various allegations.
b. Did Groves interrogate job applicants about their
union affiliations?
Barker testified that after hearing from an unnamed
person that Respondent had received the Alyeska con-
tract and that it would be nonunion, he went to speak to
Groves about employment . Groves stated they were not
hiring anyone then. Then Barker stated that he was on
withdrawal from his union and , to this information,
Barker responded that they would be hiring but the job
would be nonunion . Afton Clifford, a former employee
and alleged discriminatee, testified that in mid-March he
overheard a conversation between Groves and two un-
named job applicants . Groves asked these persons if they
were in a union . The witness could not recall what
answer, if any, was given , but he did recall that Groves
went on to say "this is not a union shop and we're not
going to go union." The unidentified applicants stated
they did not care about this, they merely wanted work.
Then Groves gave them job applications. According to
Groves, he merely told Barker that Respondent was non-
union and he said , "Yes, I know that. He was on with-
drawal from the Union. There's no union jobs and I've
got to go to work."
Although it appears that even under Groves' version
of events Respondent may well have violated the Act, I
specifically credit Barker and Clifford on this point. Con-
cerning Clifford, I am unable to fmd that Groves even
1201
denied this testimony . In any event , questions about or
statements meant to elicit information regarding an appli-
cant's union membership or union preference , in the con-
text of job aplication interviews , are inherently coercive,
even without accompanying threats. Such acts are, there-
fore, violative of Section 8(a)(1) of the Act, even when
the interviewee is subsequently hired. 6 Here I fmd that
Respondent, through its supervisor, Groves, violated the
Act.7
c. Did Groves cancel previously scheduled pay raises
for two or more employees?
Patrick Comeau, the primary union activist at shop 1,
was hired in May 1979 at the rate of $10 per hour. Virtu-
ally every payday Comeau requested from Groves a pay
raise. This continued after December 1979 when Comeau
received a raise to $12.50 per hour. At this point, Co-
meau's pay was still lower than that of other experienced
mechanics employed by Respondent . Both Fowler,
whom I will fmd below to be a statutory supervisor, and
Groves promised to get Comeau more money . I discredit
the denials of Fowler and Groves that more money was
ever promised to Comeau.
In crediting the testimony of Comeau , I begin with the
witness himself whom I found generally to be credible.
Moreover, he was corroborated by Darrell Qualls, a cur-
rent employee of Respondent. He testified that in mid-
March he overheard Groves promise Comeau to see that
he got the additional raise that was coming to him.8
I rely further on the testimony of Clifford who testi-
fied not about Comeau , but about himself.9 Clifford was
employed by Respondent between February 4 and
March 18 . Although technically carried as a mechanic's
helper, his primary job was to paint equipment. When
hired, Clifford was told by Fowler that as soon as Re-
spondent got the Alyeska contract work his pay would
go from $10 to $12 per hour.1 ° I fmd this testimony,
which I credit, corroborates that of Comeau.
I am most convinced that Groves, and to a lesser
extent Fowler, made promises of pay raises because
Groves himself admitted that subsequent to receipt of the
union petition he told Commeau on advice of counsel
that no pay raises would be given until the union ques-
tion was settled . (R. Br. 80.) Later, Groves made the
a Quality Drywall Co., 254 NLRB 617, 623 (1981). Cf. Valley Cabinet &
Mfg., 253 NLRB 98 (1980).
r As a general rule, I found Groves' credibility to be low. As a basis
for this finding, I note the overwhelming evidence of Respondent's union
animus presented by the General Counsel, particularly the evidence relat-
ing to the discharge of Clifford, below, which I find most convincing.
s As a current employee of Respondent , Qualls is entitled to greater
credibility than he might otherwise be entitled to This is so because he is
testifying against the financial interests of his employer . I have evaluated
his testimony accordingly . See Unarca Industries, 197 NLRB 489, 491
(1972).
9 Still another witness , Barker, whom I find to be credible, testified
that Groves told him no raises would be given due to union activities in
shop 2. (R. Br. 172.)
10 Of course , Clifford was unaware that the work had already been
awarded to Respondent . Moreover, I do not doubt the credibility of the
witness because he was actually working on Alyeska vehicles while wait-
ing for the expected Alyeska contract and subsequent pay raise. I agree
with the General Counsel that the witness was somewhat unsophisticated
and nonassertive. Moreover, Fowler never denied this testimony.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same statement to employees at the March 10 meeting
for shop 1. (R. Br. 551.)11 Of course, it would be ab-
sured to argue that a supervisor would announce that all
raises were frozen when no one had been promised a
raise . Accordingly, I find that at least two raises had
been promised and not received because of union activi-
ty. 1 12
An employer is obliged to carry out his wage-setting
practices during a union campaign in the same manner it
would have done in the absence of the union.13 Clearly,
Respondent did not follow this rule and thus violated the
Act. In a Board-approved decision, Florida Ambulance
Service, 255 NLRB 286 (1981), the administrative law
judge found an 8(a)(1) violation when a supervisor
threatened employees with loss of scheduled pay raises
because of expenses caused by their union activities. In
addition, the same supervisor told an individual employ-
ee that union activities had cost him his pay raise. The
similarity of the above case to the instant case is striking.
I find that Groves' remarks threatening the loss of prom-
ised pay raises to Comeau and Clifford violated Section
8(a)(1) of the Act.14
In finding the violation above, I reject Respondent's
apparent defense 15 that in making the announcements
canceling the pay raises, it was merely relying on advice
of counsel.' 6
d. Did Groves threaten harsh working conditions if the
Union got in?
William Gilpin first worked for Respondent in June
1979 for about 2 months. He was rehired in January and
worked until March. He worked at shop 2 as lead me-
chanic, having had many years' experience as a heavy-
duty mechanic. Gilpin testified that in late February he
had a conversation with Groves at shop 2. Gilpin began
the conversation and, as Groves was looking troubled,
asked Groves what was bothering him. Groves respond-
ed:
You guys want to go union, you had a good thing
there, and should things change, I don't know
31 Clifford further testified that Groves specifically told him he would
not get his $2 raise until the union thing was settled , although he was
definitely eligible for it This was in response to Clifford's rhetorical
question, "Well, I guess there goes my $2 raise then " There is some con-
fusion about the date of this conversation , which I find to be immaterial.
This conversation apparently occurred subsequent to Groves' admitted
public announcement at the March 10 meeting
12 Even if I am incorrect in finding that pay raises had actually been
promised to Comeau and Clifford, I would still find a violation of Sec
8(a)(1) based on Groves' admitted statements at the March 10 meeting
Thus, I find that even under Respondent's theory (R Br 61-62) employ-
ees would have lost a benefit due to union activities, i.e , the right to be
considered for pay raises even on the uncertain and irregular basis urged
by Respondent as its longstanding business practice
13 McCormick Longmeadow Stone Co, 158 NLRB 1237, 1243 (1966)
See also NLRB v Exchange Parts Co, 375 U S 405 (1964)
14 See also Intermountain Rural Electric Assn , 253 NLRB 1153 (1981)
I also find that the statements of Groves violate Sec 8(a)(3) of the Act
15 It is not clear that Respondent offers advice of counsel as a defense
It does not raise the matter in its brief on the instant point (Br 66-62 )
Yet in his testimony at hearing, Groves seemed to rely on advice of
counsel as a defense to his actions relevant to the pay raises
16 Jerstedt Lumber Co, 209 NLRB 662 (1974), and cases cited at fn 2,
Simpson Electric Co, 249 NLRB 148 (1980)
whether you will continue to enjoy some of the
same benefits as far as working on [private] trucks
and stuff like that. [R. Br. 390.]
At the time of this conversation, Gilpin had signed a
union card a short period before and was working on his
private vehicle on Respondent's premises.
I find that in denying its employees, or threatening to
deny its employees, a previously available privilege and
thereby impose less favorable working conditions be-
cause of employee support for the Union, Respondent
violated Section 8(a)(1) of the Act.'7
e. Were Groves' remarks to Barker violative of the
Act?
At page 40 of his brief, the General Counsel appears
to raise an issue not specifically pled in the amended
complaint. Groves accused Barker of having been plant-
ed at Respondent by the Union and by Earth Movers to
create a union hassle . Earth Movers was a competitor of
Respondent's and Barker's prior and subsequent employ-
er. This remark occurred a few days before the March
11 meeting at shop 2.
A violation of the Act developed during the course of
the hearing must be remedied, even without a motion to
do so, when it is related to the subject matter of the
complaint and when the facts on which it is based have
been fully litigated. 18 Here , both of these tests are satis-
fied and I find that Groves' remark violated Section
8(a)(1) of the Act. Groves' hostility was clearly based on
knowledge he had acquired of Barker's role in circulat-
ing the union cards. An employee should not be expect-
ed to incur the wrath of a supervisor for engaging in
Section 7 protected activities.
Another conversation between Barker and Groves oc-
curred a few days after Barker turned in the signed
union cards and apparently before receipt of the petition.
According to Barker, Groves solicited his opinion rela-
tive to a new plan when the employees contribute 25
cents per hour to be matched by management and the
total would be disbursed to employees around Christmas.
Barker said he had no interest in the plan.
The General Counsel candidly states (Br. 39) that,
"Groves' intent in this conversation is a little difficult to
understand." Then he goes on to speculate about
Groves' purpose. While the offering of increased benefits
during a union organizing campaign raises a presumption
that such increases are for the unlawful purpose of influ-
encing employees, this rule is subject to the requirement
of knowledge by Respondent. I find no such knowledge
nor can I find by a preponderance that by asking for
Barker's opinion, Groves could be said to be deterring
him from the exercise of his Section 7 rights. Concerning
knowledge, Barker testified that Adkins was aware of
the union activity before Groves raised the subject of the
new plan. I will find below that Adkins is not a statutory
supervisor. Accordingly, I will recommend that this alle-
gation be dismissed.
17 K-Mart Corp, 255 NLRB 922 (1981)
18 Alexander Restaurant & Lounge, 228 NLRB 165 (1977), enfd 586
F 2d 1300 (9th Cir 1978)
GROVES TRUCK & TRAILER
f. Was Groves' remark to Buchanan violative of the
Act?
Charles Buchanan worked for Respondent from Feb-
ruary 1 to March 14 as a heavy-duty mechanic-welder.
When hired , he had 15-20 years' experience in that
work . About 7-10 days after Buchanan had signed a
union card , Groves approached him at shop 2, where he
was then working , and said , "I understand you're not
happy here." The witness denied being unhappy . Groves
went on to say, "If I was as unhappy as it sounds like
you are, I would leave." (R. Br. 302 .) Groves also stated
that he wished Buchanan was in his shoes, with the shop
burning down and the other problems around there, and
then the Union getting down on him.
It appears that Groves ' comments to Buchanan were
based either on the latter 's having signed a union card or
on a statement Buchanan had made to other employees
during a coffeebreak that Joe Blackard was a "cheap
son-of-a-bitch." 19 (R. Br. 309.) Even though employees
are protected under the Act in their activities relating to
increasing their wages and benefits , if Groves ' remarks to
Buchanan were based on the latter's characterization of
Blackard , I would find no violation of the Act.20 On the
other hand , if Groves ' statements were based on Buchan-
an's having signed a union card , then such a statement
would be violative of the Act. In fact , there is no way to
tell from the record what prompted Groves to make the
statement . Accordingly , I will recommend that this
charge be dismissed.21
g. Are Fowler and Adkins supervisors?
In order to resolve further issues, it is necessary to de-
termine the status of Fowler and Adkins, both of whom
are alleged by the General Counsel to be statutory super-
visors.
Before analyzing the evidence relative to these individ-
uals, some preliminary observations will be helpful.
Under Section 2(11) of the Act, a supervisor is "any
individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign , reward, or discipline other employees,
or responsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action." To
qualify as a supervisor, it is not necessary that an individ-
ual possess all these powers. Rather, possession of any
one of them is sufficient to confer supervisory status.
NLRB v. Edward G. Budd Mfg. Co., 169 F.2d 571, 576
(6th Cir. 1948), cert. denied 335 U.S. 908 (1949); Ohio
Power Co. v. NLRB, 176 F.2d 385, 387 (6th Cir. 1949),
cert. denied 338 U.S. 899 (1950). However, possession,
19 In response to the question on cross -examination about whether he
so characterized Blackard, the witness answered , "I might have, I don't
know." (R. Br. 309 ) Based on his demeanor and the nature of the
answer, I find that he did indeed make the statement.
80 This is so because of the insubordinate nature of Buchanan's com-
ment See Dade Tire Co., 244 NLRB 244 (1979); Passaic Crushed Stone
Co, 206 NLRB 81 (1973). In addition , I find no concerted action here,
but merely an employee who did not like his boss.
Si In spite of this finding , I will recommend below that Buchanan's
layoff violated Sec. 8(a)(3) of the Act For me , the two findings represent
not inconsistency, but, rather , evaluation of different evidence offered to
prove the two allegations.
1203
alone, of one of these powers does not suffice to confer
supervisory status . Rather, supervisory status exists only
if the power is exercised with independent judgment on
behalf of management, and not in a routine or clerical
manner . "Nevertheless , the statute expressly insists that a
supervisor 1) have authority 2) to use independent judg-
ment 3) in performing such supervisory functions 4) in
the interest of management . These latter requirements are
conjunctive ." (Citations omitted .) NLRB v. Security
Guard Service., 384 F .2d 143, 147-148 (5th Cir . 1967).
Moreover, "the burden is on the party alleging supervi-
sor status to prove that it, in fact , exists." (Fn. omitted.)
Commercial Movers, 240 NLRB 289, 290 ( 1979).22
With the above -stated general principles of law as a
guide, I turn to the two individuals alleged to be supervi-
sors.
(1) George Fowler
Fowler began his employment with Respondent in Oc-
tober 1978 as a Detroit Diesel specialist and is presently
employed there . According to Fowler , his present title is
"lead mechanic," reflecting a position he has held since
July 1979 when he replaced a man named Doug Curtis.
Most everyone else, including Respondent in its brief (R.
Br. 66) considered Fowler to be "shop foreman " of shop
1. It is true that titles and wage data are not dispositive,
nor do they confer status,22 but any analysis must begin
with Fowler 's proper title , "shop foreman."
Fowler testified that he was no more than a mere con-
duit for Groves, lacking independent authority to hire,
fire, effectively recommend hiring or firing , or to respon-
sibly direct employees . The record refutes this testimony
in abundance . For example , the evidence shows that
Fowler hired Buchanan in November 1979. When he
was laid off in December, Buchanan was rehired by
Groves . Fowler also hired Qualls and Clifford . Even if it
could be said that Groves made the final decision, the
record is clear that at a minimum , Fowler effectively
recommended these employees because in some cases,
they were never even interviewed by Groves prior to
hiring.24
In addition, the record is replete with evidence that
Fowler directed the work at shop 1 , giving assignments,
as reported by Comeau , Clifford, and Qualls . 25 In addi-
tion, Qualls and other employees were authorized by
Fowler to take time off either for short periods or longer
times . 26 Fowler also asked Qualls to change his hours
from the day shift to the night shift . Less convincing
than other evidence , but nevertheless a factor in my find-
ing, is Fowler's role in pay raises . Both Qualls and
Comeau testified tht Fowler made promises to try and
get more money for them but this was couched in terms
of talking to Groves about the matter . Somewhat more
persuasive was Clifford 's testimony that Fowler made a
promise to get more money for him as soon as the
Alyeska contract was signed. Presently , if Qualls has any
$' Hydro Conduit Corp., 254 NLRB 433 (1981).
2s Washington Post Co., 254 NLRB 168 at fn 22 (1981).
24 See Elliott- Williams Co., 143 NLRB 811 (1963).
25 See Illini Steel Fabricators, 197 NLRB 303 (1972).
26 See Western Saw Mfrs., 155 NLRB 1323, 1329 fn. 11 (1965).
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary problems with the employees on the night
shift, Qualls discusses the matter with Fowler, even
though technically Qualls has the title of "foreman" for
the night shift . Thus, for all the reasons cited above, I
am convinced and find that at all times relevant Fowler
was a statutory supervisor.
(2) Joel Adkins
Contrary to the General Counsel's contention, I fmd
that Joel Adkins is not a statutory supervisor. Adkins
was hired in August 1977, and has worked for Respond-
ent through the present . Prior to working for Respond-
ent, he had only limited experience as a mechanic, but
had formerly worked for Cummins Northwest as a parts-
man and was thoroughly familiar with its inventory
when Respondent took over the franchise. When shop 2
opened, he was assigned there primarily to handle the
volume of new paper work engendered by the Alyeska
contract. To a lesser extent, he handled parts there too,
but since shop 2 did not maintain a separate parts depart-
ment, his job basically was to obtain needed parts from
shop 1 or some other source . He also completed job esti-
mates of various Alyeska equipment awaiting repair.27
The record shows that Adkins attempted to hold him-
self out on occasion as having more authority than he ac-
tually had. The record also shows occasional and sporad-
ic exercise of supervisory power, but not on a basis suffi-
cient to confer supervisory status.
There is no evidence that Adkins ever hired anyone.
Even when Adkins called Barker to tell him to come to
work, Barker knew that Groves must have "Oked" it.
(R. Br. 204.) On occasion, Adkins would acquiesce in an
employee's need for time off . At most, these occasions
were isolated instances of supervisory authority.28 While
Adkins was at shop 2, either Delbert Delaney or William
Gilpin was a lead mechanic or shop foreman. Although
these two individuals were , in some respects, comparable
to Fowler, it is unnecessary to determine their superviso-
ry status because there is no issue in the case as regards
their status. We can say that as to Adkins, such making
of assignments or posting of job orders as he did was
purely on a routine basis and lacked discretion. Similarly,
Adkins lacked authority to discipline employees and
could only recommend to Groves that a certain employ-
ee needed correction for whatever reason and Groves
would decide what action, if any, to take. Finally, re-
garding salary , Adkins was paid on a monthly basis,
based on a 40-hour week. Other employees in the shop
were paid on an hourly basis. However, while wage data
is probate, it is never conclusive nor determinative, 29
and in this respect I note that if Adkins worked over-
time, he was paid on an overtime basis or given compen-
sation time just like other employees. On the basis of all
2' Basically, Adkins' duties were of a routine, almost clerical nature
and did not call for the exercise of independent judgment See NLRB v
Magnesium Casting Co, 427 F 2d 114 (1st Cir 1970)
28 Operating Engineers Local 673 (Westinghouse Electric), 229 NLRB
726 (1977)
29 Washington Post Co, supra, 254 NLRB 168 at fn 22. Moreover, this
difference in pay structure together with Adkins ' routine staff position is
the reason Adkins was not asked to sign a union authorization card, not
because employees considered him to be part of management
the evidence , I must conclude that Adkins was not a su-
pervisor during all times relevant to this case . In light of
this conclusion , I will recommend that the issue arising
out of paragraph 6(f) of the complaint be dismissed.30
h. Did Fowler threaten closure of shop 2 because of
employee union activities?
According to Respondent's present employee, Qualls,
whose credibility I have already found to be high,
Fowler stated in early March that Respondent was con-
sidering the closing of shop 2 due to union problems. I
fmd that Fowler's remark constituted a threat in viola-
tion of the Act.$1 While Qualls was employed at shop 1
and not immediately affected , he had signed a union card
and thus was a potential target . In any event , a violation
does not depend on any subjective effect on the employ-
ee.
The General Counsel also urges that a second state-
ment made by Fowler violates the Act. On the way back
to shop 1 after the March 11 meeting to be discussed
below, Fowler told Comeau and Burkhart that all the
people in shop 2 except Broderick were to be laid off.
As his source, Fowler quoted Adkins . Because I will find
below the layoffs to have violated Section 8(a)(3) of the
Act, I find this statement to be a violation of Section
8(a)(1). I evaluate Fowler's statement in the context of
his earlier statement to Qualls, made just a few days
before. There, the closing of shop 2 was specifically
linked to union activities . Here, while the union refer-
ence was missing in Fowler's second statement, the im-
plication was clear . Due to the small size of shop 1, it is
likely that Fowler's statement to Qualls was repeated to
others, including Comeau and Burkhart. Finally, it makes
no difference to this violation that Fowler quoted
Adkins, a nonsupervisor, as his source for the informa-
tion. By repeating it to Comeau and Burkhart, Fowler
lent the statement credibility based on his own status as
supervisor.
i. Whether Respondent violated the Act by statements
made at the March 10 and 11 meetings
On March 10 and 11, on worktime, Respondent caused
meetings of employees to be held at shops 1 and 2, re-
spectively. Although Comeau and Burkhart would nor-
mally have attended the meeting at shop 1 as they were
employed there, they attended at shop 2 because March
10 was their day off. At these meetings employees were
addressed by Blackard, Groves, and Devich. In certain
respects, the two meetings were similar to each other
and to an earlier meeting in January. As to shop 1,
90 No alternative claim is made by the General Counsel that Adkins
was an individual acting as an agent of Respondent. See Savoy Brass Mfg.
Co., 241 NLRB 51 (1979); Helena Laboratories Corp., 225 NLRB 257, 258
(1976) Because I cannot find that this issue was fairly litigated at the
hearing , I make no finding on the matter.
21 As the Board stated in Pittsburgh & New England Trucking, 249
NLRB 833 ( 1980).
A threat of loss of employment, whether through plant closure,
discharge , or layoff, is one of the most flagrant means by which an
employer can hope to dissuade employees from supporting a union
And, "the specter of job loss once conjured up is not easily in-
terred
GROVES TRUCK & TRAILER
Qualls recalled that Devich began the meeting with a re-
quest to know employees' grievances. In addition, profit-
sharing, pensions, and health insurance carriers were dis-
cussed. I find that Respondent violated Section 8(a)(1) of
the Act by soliciting grievances from employees about 2
weeks after the Union's petition was filed.32 There was
no evidence that Respondent had ever held this type of
meeting before and the presence of Devich, in particular,
was meant to impress employees. Thus, the implied
promise to remedy the grievance was for the purpose of
eroding support among employees for the Union.
Turning to March 11, I find that Respondent's conduct
at shop 2 was even more egregious than at shop 1.
Blackard talked to employees, telling them of his opposi-
tion to the Union. He also mentioned the profit-sharing,
pension, and medical benefits plan, which had been re-
ferred to briefly back in January. Blackard admitted tell-
ing employees at this meeting-on advice of counsel-
that Respondent could no longer pursue these plans
while the Union's petition was pending. I find that
Blackard's remarks to employees were designed to erode
support for the Union and violated Section 8(a)(1) of the
Act.33 Here Respondent dangles the carrot in front of
employees in the form of increased benefits and yanks it
away because of union activity.34
j. Did Respondent violate the Act in May by promising
better insurance benefits?
The subject of insurance benefits was first mentioned
to Respondent's employees in January, again in March,
and finally in May, when most of the events in contro-
versy here were over. I agree with the General Coun-
sel's theory that in May when Blackard told Qualls and
Jack Uhl, another employee, that Respondent would
change insurance companies within 30 days, Respondent
violated the Act. Apparently, that promise was kept. I
make my finding on the evidence showing that new em-
ployees were being hired at this time to replace former
employees whom I will find to be unlawfully laid off.
Thus, this is a classic example of a fist inside the velvet
glove35 and is designed to show employees that a union
would be powerless to help them get benefits.
2. The layoffs and other terminations
a. Introduction
The General Counsel seeks a finding that former em-
ployees Barker, Gilpin, Buchanan, Stapleton, Vander-
meer, Glover, and Clifford were laid off or otherwise
terminated in violation of Section 8(a)(3) of the Act; he
further seeks a reinstatement and make-whole order as to
each. I begin by noting that with one exception the
8(a)(1) violations found above occurred prior to the lay-
98 K-Mart Corp., supra, 255 NLRB 922
Sa May Department Stores Co., 174 NLRB 770 (1969), Montgomery
Ward & Co., supra, 225 NLRB 112 at 118. Of course, Respondent's re-
marks to employees that but for the Union, they would continue in their
efforts to get additional benefits is completely contrary and inconsistent
with Respondent's defense of the layoffs, i.e., that business and revenues
were declining.
84 Cf. Frito-Lay, Inc. Y. NLRB, 585 F.2d 62, 66 (3d Cir. 1978)
35 NLRB Y. Exchange Parts Co, supra, 375 U.S 409 (1964).
1205
offs or terminations now in issue. Accordingly, I must
weigh the evidence in the proper context of these several
unfair labor practices. I will consider each former em-
ployee separately, beginning with Afton Clifford. The
proof of his unlawful treatment by Respondent can only
be characterized as overwhelming.
b. Afton Clifford
Clifford first came to the attention of Respondent after
the fire noted above. Employed by a painting contractor
brought in to help in the cleanup , Clifford immediately
stood out from other employees of the contractor as
doing good work. Fowler asked him if he desired to
work for Respondent and agreement was soon reached
on terms and conditions of employment.
While employed at shop 1 as a painter , Clifford signed
a union card. He performed some painting of trucks
which Clifford admitted was not good due to conditions
in the shop. Comeau supported Clifford's testimony that
shop conditions were simply not right for a good paint-
ing job. Clifford also installed a radiator the wrong way,
but I am unable to determine whether Clifford was com-
pletely at fault for this mistake . Assuming he was, the
mistake took 10 minutes to correct. Finally, Clifford is
alleged to have also done a poor job on a fiberglass
hood.
In any event, on March 18, a workday, Fowler gave
Clifford a pink slip saying there was insufficient work.
The pink slip stated "reduction in force, eligible for
rehire." Before Clifford left work that day, Fowler asked
for the pink slip back without telling Clifford what he
wanted it for. A few minutes later, Fowler handed Clif-
ford a different slip back. At the hearing, Clifford was
shown an alleged copy of the second slip handed back to
him by Fowler and provided to the General Counsel by
Respondent. (R. Exh. 1, p. 2.)
Clifford denied that this was a copy of the second slip
given to him by Fowler. I then ordered Clifford to go to
his home and and find the slip given to him by Fowler
or be prepared to explain why he could not locate the
document. After lunch, Clifford did indeed produce the
true second slip given to him by Fowler. (G.C. Exh. 20.)
The difference is obvious. The document provided to the
General Counsel was the third slip relevant to Clifford's
termination. The after-added reasons were entered with-
out the knowledge of Clifford. All the above, except for
the inferences which I will draw below, were admittedly
by Fowler. (R. Br. 607.) He testified that the first slip
was given to Clifford in error and the third slip was
merely filled in after Clifford had left the premises and
Groves suggested "to document anything you know that
you had to do over that Clifford did."
It has been held that when an employer adds reasons
for an employee's discharge as an afterthought, an infer-
ence of an unlawful motive may be drawn.36 Put differ-
ently, Respondent's inability to settle on a clearly articu-
lated explanation for the discharge similarly impeaches
36 NLRB v. SE Nichols-Dover. Inc., 414 F.2d 561, 564 (3d Cir 1969)
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's case. 3 7 Thus, I find without question that
the General Counsel has presented a prima facie case of
unlawful discharge.
c. Charles Buchanan
Buchanan worked for Respondent twice; once in No-
vember 1979 for about 2 months and again in February,
for about 6 weeks. That he was rehired by Respondent
speaks well of his experience which was extensive and
the quality of his work, which was good. Buchanan
worked as a mechanic and as a welder and was assigned
to shop 2. While there, he signed a union authorization
card tendered by Barker. On March 14, Buchanan was
laid off.
The reasons advanced by Respondent for Buchanan's
layoff, like those advanced for Clifford' s, are a mixture
of contradictory and nonpersuasive claims. First, I am
told by Groves that Buchanan was laid off due to a re-
duction in force and that he was eligible for rehire. (R.
Br. 132.) (R. Exh. 1 at 3.) Then, in the next breath, I am
told by Groves that Buchanan refused to fill out the nec-
essary Alyeska paperwork and his daily timecards. Ac-
cording to Groves, he had to remind Buchanan on sever-
al occasions to complete the required forms. Groves was
supported in his view of Buchanan's deficiencies by
Judith Gilbertson, a current employee of Respondent,
who worked as a secretary in shop 2.
Again Respondent is shifting its reasons which is indic-
ative of discriminatory intent.38 There is no evidence
that Buchanan was ever warned that his reluctance to
complete paperwork might affect his job tenure. And, of
course, there is Buchanan 's layoff slip clearly indicating
that he was eligible for rehire.39 In light of the above, I
find that the General Counsel has proven a prima facie
case as to Buchanan.
d. Melvin Barker, et at
The General Counsel contends that, in addition to the
two employees discussed above, several others were laid
off or terminated in violation of the Act: Barker, Gilpin,
Stapleton, Vandermeer, and Glover. Of these, Norman
Stapleton, Rex Vandermeer, and Larry Glover did not
testify.40 None of these three signed a union authoriza-
tion card nor is there evidence that they were asked to
sign one. Stapleton was a mechanic at shop 2, working
primarily on light-duty motors. Vandermeer was a parts
chaser and sweeper at shop 2. Glover was also a sweep-
er, having been hired in early March, and was laid off
with the others on March 14 t
Regarding William Gilpin, his termination notice,
dated March 14, 1980, indicates a reduction in force with
Gilpin eligible for rehire. (R. Exh. 1, at 10.) As the lead
mechanic at shop 2, Gilpin was perhaps the most skillful
of those employed there. In fact, Gilpin had first worked
for Respondent in June 1979 for about 2 months, then
was rehired in January. In February, Gilpin signed a
union authorization card given to him by Barker and re-
turned it to him.
In evaluating the layoffs of these employees, I note the
context in which they occurred such as the 8(a)(1) viola-
tions and the evidence regarding Clifford and Buchanan.
In addition, I note that immediately subsequent to the
layoff, Respondent brought in two persons, Delbert De-
laney and Lonnie Solmonson, to continue doing the
work that the laid-off employees had been doing. De-
laney had previously worked at shop 2 for a brief period
as shop foreman, but returned to Anchorage due to a
medical problem. When shop 2 closed by April 1, he ap-
parently returned again to Anchorage. Solmonson, so far
as known, was a new hire as of March 22 and remains
employed by Respondent up to the present time. Re-
spondent presented no convincing evidence about how
these two persons, neither of whom testified, came to be
employed by Respondent after the layoffs. Thus, I find
that their unexplained employment by Respondent imme-
diately after the March 14 layoffs is a factor tending to
support the General Counsel's case.
In considering the layoffs of all employees alleged by
the General Counsel to have been unlawfully dis-
charged-except for Melvin Barker's whose case re-
quires separate analysis below-I find that the General
Counsel has presented a prima facie case under Wright
Line, 251 NLRB 1083 (1980).42 That is, I find that, in
the context of this case, the employees' protected activi-
ty was a motivating factor in the layoffs. I turn to a dis-
cussion of Respondent's evidence to determine whether
the layoffs would have occurred in the absence of the
protected activity.
In discussing Respondent's evidence, I begin of course
with the fire of January 21 which was the direct cause of
renting shop 2.43 To this I add the testimony of Harold
Alexander, an official of Alyeska. According to his testi-
mony, the volume of Alyeska business for Respondent
had not been as great as expected. Indeed, Alexander re-
lated a conversation that Blackard had with him in
March, wherein the former expressed his desire to con-
solidate shops 1 and 2. Alexander was unable to tell
3' Louisiana Council No 17, Stage Employees AFSCME, 250 NLRB
880 and cases cited at fn 38 (1980), Pandair Freight, 253 NLRB 973
(1980) In addition to the inferences arising from Respondent's conduct as
described above, I also find that Clifford's work was not poor to begin
with I note how Clifford came to be hired and credit the testimony of
Comeau and Buchanan-that Clifford's painting could not have been
better due to the circumstances in the shop
3' Gossen Co, 254 NLRB 339 (1980)
39 See Daniel Construction Co, 229 NLRB 93 (1977), Springfield Dodge,
218 NLRB 1429 (1975)
40 Of course, if the record sustains the allegations of unlawful discrimi-
nation against discharged employees, their testimony is not a sine qua non
for relief under the Act Cutting, Inc, 255 NLRB 534 (1981)
41 In his brief, p 24, the General Counsel characterizes Vandermeer
and Glover as "the sheep caught with the goats" when the shop was
closed to destroy the union organizing with effort I find that this de-
scription would include Stapleton as well In a case with facts similar to
those in the instant case , the court, in affirming an 8(a)(3) violation, used
the expression , that a mass layoff is a violation of the Act "even if some
white sheep suffer along with the black " Majestic Molded Products V
NLRB, 330 F 2d 603, 606 (2d Cir 1964)
42 Respondent asserts that it does not totally agree with the Board's
ruling on the Wright Line case (Br 39) Of course, I am bound by the
Board's decisions and reject Respondent's tender of various circuit court
decisions in its place
4 8 The General Counsel basically accepts this finding (Br 9 )
GROVES TRUCK & TRAILER
Blackard that the volume of business would increase and
in fact the -volume has remained lower than expected
over the succeeding year up to the hearing date.
I assume , arguendo, that the volume of Alyeska busi-
ness had been less than expected by Respondent. Howev-
er, I also find that in late March, just as the harsh Alaska
winter was breaking, Respondent had every reason to
believe that its alternate sources of business would in-
crease.
It should be noted that at the shop 2 meeting on
March 11, company officials stressed high overhead ,and
delinquent accounts receivable as a basis for the possible
shutdown of shop 2. No mention was made at the meet-
ing that the layoffs would occur. I have found above
that Supervisor Fowler told Qualls that shop 2 would be
closed due to union problems and in a second statement,
Fowler told Comeau and Burkhart that all people in
shop 2 would be laid- off exept for Broderick. These
credited statements by Respondent's agent are inconsist-
ent with Respondent's defense of financial hardship.44
Respondent contends that it had a profit incentive to
lay off shop 2 employees and, with Alyeska's permission,
authorize overtime for the remaining employees. Yet,
several of the General Counsel's witnesses testified that
there was ample work for all, although not necessarily
with large amounts of overtime for all. But for the an-
tiunion animus shown by this evidence, Respondent's
long-term profit goals would have been to spread its
work to all employees in order to keep its work force
intact rather than mass layoffs of union supporters in late
winter, only to begin hiring again, later, after the union
organizing drive had dissipated.45 I have carefully exam-
ined the voluminous financial data and 'business records
of Respondent's operations and find that such evidence is
insufficient to show that the layoffs here in issue would
have occurred in the absence of the protected activity
under the Wright Line case.46
In sum, I find that the timing of the layoffs in issue
here is perhaps the most critical circumstantial factot.47
In addition, there is incriminating 'evidence of a direct
nature relating to statements of supervisors, inconsistent
and contradictory positions taken by Respondent as to
Clifford and Buchanan, and other evidence related
above, all tending to show animus toward the Union and
several independent violations of the Act.48
Finally, the case of Melvin Barker must be discussed.
The record shows that Barker was the primary union ac-
tivist as it was he who first 'obtained the cards from the
Union for distribution to employees. No claim is raised
by Respondent that his work was inadequate. Respond-
44 Two other factors have a degree of probative value but are remote
from the events here in issue For example, in October, Respondent
began a night shift to process the volume of work then existing In Sep-
tember, Respondent opened a new shop 2 (shop 3) in Fairbanks All of
this occurred despite Respondent's evidence that the Alyeska business
never met the volume expected This evidence has a tendency to impeach
Respondent's defense.
45 See Carbonex Coal Ca., 248 NLRB 779, 780 fn. 11 (1980)
48 In my ,judgment, extended analysis of these records is unnecessary
in light of the credited testimony referred to above and particularly as
this evidence has been carefully examined and weighed in preparation of
this opinion. See. Limestone Apparel Corp., 255 NLRB 722 (1981).
47 See Modesti Bros., 255 NLRB 911 (1981).
48 Radiadores Paragon de Puerto Rico, 206 NLRB 918 (1973).
1207
eat does contend that Barker quit his job for two rea-
sons: (1) to return to his old job at Earth Movers; and (2)
to work on a new house he was building for himself and
his family . The General Counsel concedes that Barker
was not laid off, but argues that Barker was construc-
tively discharged . The General . Counsel also states that
constructive discharges are not easily declared by the
Board . (Br. 27 .) Without deciding whether this claim is
true, I will recommend that the Board find that Barker
was constructively discharged in this case in violation of
the Act.'
Barker quit working for Respondent on March 12.
Groves and Adkins both testified that during the March
11 meeting at shop 2, Barker told Groves , in front of
other attendees , that he was leaving anyway, but his
questions represented his concern for other employees'
welfare . I have found that shortly before this meeting,
Groves said to Barker that he was a plant sent in by the
Union and Earth Movers to cause trouble for Respond-
ent. Then at the March 11 meeting, both Blackard and
Groves announced that shop 2 was going to be closed.
At this point, Barker called his old boss at Earth Movers
and asked him for a job. When' told he could have his
old job back, Barker quit Respondent the next day.
In NLRB v Haberman Construction Co., 641 F.2d 351
(5th Cir. 1981), the court stated there were two elements
to a constructive discharge violative of Section 8(a)(3) of
the Act. First, the employer's conduct must have created
working conditions so intolerable that an employee is
forced to resign. Second , the employer must have acted
to encourage or discourage membership in any labor or-
ganization within the meaning of Section 8 (a)(3) of the
Act. In analyzing the instant case , I note the "union
plant" remark made by Groves to Barker and my finding
of unlawful layoffs. Accordingly , the second prong of
the constructive discharge is satisfied as these are exam-
ples of employer conduct destructive of employee rights
and tending to deter protected activity. For me , the real
question here is whether Respondent created intolerable
working conditions.
I fmd that by announcing to employees on March 11
that it expected to close shop 2 , Respondent created in-
tolerable working conditions . Barker could reasonably
fear that as a direct result of 'his union activities, he
would be laid off when shop 2 was closed and that this
expectation created by Respondent was a reasonable
basis for Barker to quit in order to secure immediate re-
employment.49
3. The bargaining order
I find for the reasons listed below that a bargaining
order is required in this case. However, I will also rec-
ommend that the 8(a)(5) allegation be dismissed. At para-
graphs 8 and 9 of the amended complaint, the General
Counsel has alleged such a violation as a result of Re-
spondent's failure to bargain over the closing of shop 2.
As a general rule, the Board has held that the partial
closing of a business and the transfer of its work else-
49 See K & S Circuits, 255 NLRB 1270 <1981).
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where is a mandatory subject of bargaining.50 In the in-
stant case, however, for such a duty to arise, the Union
must have made an effective demand for bargaining. No
such demand was made here and it should be noted that
the mere filing of a representation petition does not con-
stitute a request for recognition or bargaining such as to
make an employer's failure to bargain, without more, a
violation of Section 8(a)(5) of the Act.51 Accordingly, I
will recommend that this allegation be dismissed.
I will, however, recommend that a bargaining order
issue.52 At hearing, the parties stipulated that an appro-
priate unit for all times relevant to this case would be:
All employees of Alaska Cummins Services, Inc.,
employed in Fairbanks, Alaska, as mechanics, me-
chanic helpers, welders, oilers, parts men, tire men,
expediters, driver and swampers [sweepers] exclud-
ing office clerical employees, salesmen , guards and
supervisors as defined in the Act. [R. Br. 686-688.]
Thus, by this standard, I count 16 employees in the unit
(10 card signers plus Stapleton, Ron Uhl, Rex Vander-
meer, Albert Froom, Adkins, and Diane Carlson). Of
these, a clear majority of the unit signed cards, indicating
a desire to be represented by the Union. Respondent
commenced its unfair labor practices about February 29,
on receiving official notice of the Union's representation
petition. Respondent committed serious unfair labor
practices, which I find had the effect of undermining the
Union's majority strength, eroding the laboratory condi-
tions necessary for the effectuation of a fair and mean-
ingful election, and effectively thwarting the proper
functioning of the Board's election processes.53
In the instant case, I have found that Respondent en-
gaged in layoffs in response to employees' union activity.
Loss of employment through plant closure, discharge, or
layoff is one of the most flagrant means by which an em-
ployer can dissuade employees from selecting a bargain-
ing representative.54 The Board approved the issuance
of a bargaining order in the recent case of Parkview Acres
Convalescent Center, 255 NLRB 1164 (1981), in which
the employer's activities were similar to those of Re-
spondent's.55 For example, there were unlawful layoffs,
hold up of a projected wage increase, threats that work-
ing conditions would be made tougher, and other points
of similarity. In sum, I find that Respondent's acts here
had a "tendency to undermine majority strength and
impede the election process." Accordingly, a bargaining
order is warranted under category 2 of those practices
described by the Court in NLRB v. Gissel Packing Co.,
supra.
50 See Otis Elevator Co, 255 NLRB 235 (1981), Brockway Motor
Trucks, 251 NLRB 29 (1980)
51 Eagle Material Handling of New Jersey, 224 NLRB 1529 (1976), affil
588 F 2d 160 (3d Cir 1977); Great Atlantic & Pacific Tea Co, 230 NLRB
766 fn 1 (1977)
52 The absence of an 8(a)(5) finding does not affect the propriety of
the recommended bargaining order because that order is not predicated
on any such finding, but rather is required to remedy Respondent 's exten-
sive unfair labor practices Eagle Material Handling of New Jersey, supra
at 1529
53 NLRB v Gissel Packing Co, 395 U S 575 (1969)
54 Doug Hartley, Inc, 255 NLRB 800 (1981)
55 See also C E Wilkinson & Sons, Inc, 255 NLRB 1367 (1981)
In recommending this bargaining order , I also rely on
certain other factors in this case. First, the bargaining
unit was relatively small which increases the probable
impact of the unfair labor practices.56 Next, the labor
market in Fairbanks, Alaska, for mechanics and mechan-
ics helpers is also relatively small, which further serves
to increase the impact of Respondent's unlawful acts.
Thus, in light of all facts heretofore mentioned, I recom-
mend that a bargaining order issue, effective February
29, the approximate date on which Respondent began its
unfair labor practices.57 By signing the union authoriza-
tion cards in this case, a majority of employees indicated
their desire to be represented by the Union and that sen-
timent should not be defeated by Respondent's actions.58
In addition, a bargaining order is otherwise necessary to
remedy the violations found herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of Respondent de-
scribed 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 dis-
putes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As the unfair labor practices committed by Respond-
ent were serious and go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and in
any other manner from interfering with, restraining, and
coercing its employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act. 59
Having found that Respondent did unlawfully layoff
and terminate Melvin Barker, William Gilpin, Charles
Buchanan, Norman Stapleton, Rex Vandermeer, Larry
Glover, and Afton Clifford, it is recommended that Re-
spondent offer them immediate and full reinstatement to
their former positions or, if the positions no longer exist,
to substantially equivalent positions, without loss of se-
niority, or other benefits, and make them whole for any
loss of pay resulting from the discrimination against them
by payment of sums of money equal to the amounts they
normally would have earned as wages from the date of
their layoffs and terminations to the date of bona fide
offers of reinstatement, less net interim earnings. The
backpay due under the terms of the recommended Order
b8 Pay 'n Save Corp v NLRB, 641 F 2d 697 (9th Cir 1981)
57 Peaker Run Coal Co, 228 NLRB 93 (1977), Panchito 's, 228 NLRB
136 (1977)
68 I agree with the General Counsel 's contention (Br. 49-50), that
under the circumstances present in this case, turnover of Respondent's
work force is irrelevant Bob White Target Co, 189 NLRB 913 (1971),
Highland Plastics , 256 NLRB 146 (1981)
59 Hickmott Foods, 242 NLRB 1357 (1979)
GROVES TRUCK & TRAILER
shall include interest to be computed in the manner pre-
scribed by the Board in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977).60
In view of Respondent's extensive and pervasive unfair
labor practices which were calculated to destroy the
Union's previously enjoyed majority status, and because
I am persuaded that the application of traditional reme-
dies for the unfair labor practices cannot eliminate the
lingering and restraining effects thereof and makes the
holding of a fair and meaningful election virtually impos-
sible, I regard the employees' signed authorization cards
as a more reliable measure of their representation desires.
I will therefore recommend the issuance of an order re-
quiring Respondent to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of Respondent's employees in the appropriate unit.61
CONCLUSIONS OF LAW
1. The Respondent, Alaska Cummins Services, Inc.
d/b/a Groves Truck & Trailer, is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Alaska Petroleum Joint Crafts Council is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and co-
erced its employees in the exercise of their rights guaran-
teed in Section 7 of the Act, and has thereby engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act by:
(a) Coercively interrogating job applicants concerning
their union activities and sympathies.
(b) Canceling previously scheduled pay raises for two
or more employees because of union activities.
(c) Threatening its employees with harsher working
conditions if they continued to support or assist the
Union.
(d) Coercively telling an employee attempting to orga-
nize a union that he was a "plant" sent in by the Union
60 See generally Isis Plumbing Co., 138 NLRB 716 (1962) Also see
Olympic Medical Corp., 250 NLRB 146 (1980).
61 NLRB Y. Gissel Packing Co., supra ; see also C E Wikinson & Sons.
Inc., supra, 255 NLRB 1367 (1981).
1209
and a business competitor to disrupt Respondent's busi-
ness.
(e) Threatening through its statutory supervisor,
Fowler, that Respondent would close down part of its
business due to employee union activities and, in a sepa-
rate statement, that all employees in shop 2, save one,
would be laid off.
(f) Soliciting employees' grievances and impliedly
promising that such grievances would be adjusted for the
purpose of influencing their selection of a labor organiza-
tion as their bargaining representative.
(g) Threatening employees with loss of pay raises and
increased benefits due to union activities.
(h) Promising remaining and new employees several
weeks after unlawful terminations had occurred that an
increase in benefits would occur.
4. By laying off and terminating Melvin Barker, Wil-
liam Gilpin, Charles Buchanan , Norman Stapleton, Rex
Vandermeer, Larry Glover, and Afton Clifford and re-
fusing to reinstate them because of their union activities,
Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(3) and (1) of the Act.
5. George Fowler is a statutory supervisor and Joel
Adkins is not a statutory supervisor.
6. The following unit constitutes a unit appropriate for
collective bargaining within the meaning of Section 9(b)
of, the Act:
All employees of Alaska Cummins Services, Inc.,
employed in Fairbanks, Alaska, as mechanics, me-
chanic helpers , welders, oilers, parts men, tire men,
expediters, driver and swampers [sweepers] exclud-
ing office clerical employees, salesmen , guards and
supervisors as defined in the Act.
7. Since February 29, the Union has represented a ma-
jority of the employees in the above-described appropri-
ate bargaining unit and has been the exclusive bargaining
representative of the employees within the meaning of
Section 9(a) of the Act.
8. Respondent did not engage in any other unfair labor
practices alleged in the complaint.
[Recommended Order omitted from publication.]