Hamburg Delivery

National Labor Relations Board - Board Decisions

May 6, 1971

190 N.L.R.B. 282 (N.L.R.B. 1971)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael Bednasz , d/b/a Hamburg Delivery and
Jerome McCarthy. Case 3-CA-4189
Upon the entire record, including my observation of the
witnesses,' I make the following:
May 6, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On January 29, 1971, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative ac-
tion, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that Respond-
ent had not engaged in certain other unfair labor
practices as alleged in the complaint. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a brief in support thereof. The
Respondent filed a brief in opposition to General Coun-
sel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended , the National Labor Relations
Board hereby orders that the Respondent , Michael
Bednasz , d/b/a Hamburg Delivery , Hamburg, New
York, his agents, successors , and assigns, shall take the
action set forth in the Trial Examiner 's recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
heard at Buffalo, New York, on January 6, 1971, pursuant to
a charge filed the preceding July 23 and a complaint issued
October 30, presents questions whether Respondent dis-
charged the Charging Party because of the latter's member-
ship in, or activities on behalf of, Truck Drivers Helpers &
Dockmen Union Local No. 375, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, and whether Respondent
interrogated or threatened employees with respect to their
union activities.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent, an individual proprietor engaged at Ham-
burg, New York, as a provider of motor freight delivery
services and related services, is admittedly engaged in trans-
porting goods moving in interstate commerce, and is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. The Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of Jerome McCarthy
On the morning of June 24, 1970, Respondent discharged
his mechanic, Jerome McCarthy, upon learning that a truck
on whose brakes McCarthy had just finished working had
been involved in an accident because its brakes had failed.
This was only the last in a series of mishaps involving vehicles
on which McCarthy had worked, and the record strongly
suggests that his competence as a mechanic was open to
serious question.
McCarthy had been engaged in some union activity under
the leadership of another employee, one Schaefer.2 Indeed, as
appears below, McCarthy had furnished Respondent with
some information as to Schaefer's union activity, and early in
June 1970 (3 weeks before the discharge) McCarthy admitted
to Respondent that he had told Schaefer to see the union
business agent if Schaefer wanted assistance in forming an
organization . It is largely on this evidence (based on McCar-
thy's testimony which Respondent denied but which I credit),
and on evidence of Respondent's opposition to having a union
represent his employees, that the case for General Counsel
rests.' On this record General Counsel's' evidence gives rise
at best to a suspicion , and the case as to McCarthy must be
dismissed for failure of proof.
B. Interference, Restraint, and Coercion
In late February or early March, McCarthy and two other
employees engaged in a discussion about the desirability of
having a union represent them. McCarthy testified that about
a week after that, Respondent asked him if he had heard
anything about union talk, pressed him to name the men
involved, and urged him to report if he heard more about it.
In that same conversation, according to McCarthy, Respond-
ent said that "he would close the doors and operate with two
or three trucks ... if any union tried to come in."
Late in May, McCarthy in response to an inquiry of
Schaefer suggested if Schaefer wanted to organize the shop he
should get in touch with the Union's business agent. Early in
June, according to McCarthy, Respondent again asked if he
had heard any union talk, and from whom, to which
McCarthy replied that he had told Schaefer to see a union
business agent . McCarthy further testified that Respondent
on that occasion and at least twice after that told McCarthy
The parties waived their rights to argue orally and to file briefs.
Schaefer was discharged a month after McCarthy. There is no claim of
illegality in Schaefer's case.
' McCarthy also testified that Respondent upon discharging him stated
that he did not have Respondent's interests at heart. I credit Respondent's
testimony that he told McCarthy that the latter "was not looking out for our
part of it." I credit Respondent's explanation that he was referring to the
cost of upkeep and the necessity for having safe vehicles on the road.
190 NLRB No. 52
HAMBURG DELIVERY
that he should never have told Schaefer how to go about
getting a union in the shop.
Early in June Schaefer asked Respondent for a raise. Ac-
cording to Schaefer, Respondent replied that "if [Schaefer]
kept [his] nose clean and didn't stir up trouble [he] would
have had a raise a long time ago."
Respondent denied making any of the statements at-
tributed to him by Schaefer and McCarthy. I credit their
testimony to the extent noted above; I do not find that Re-
spondent made other illegal threats attributed to him by
McCarthy and denied by Respondent. I find, however, that
by interrogating McCarthy as to his union activity and that
of other employees, by asking him to report future union
activity, by threatening to curtail operations if a union came
in, and by implying that Schaefer's union activity had cost
him a raise, Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent , by questioning employees as to their own
union activity and that of other employees , by asking em-
ployees to report on further union activity , by threatening to
curtail operations if a union became the bargaining represent-
ative , and by implying that an employee 's union activity had
cost him a raise in pay , engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2 (6) and (7) of the Act.
2. Respondent did not commit an unfair labor practice in
discharging Jerome McCarthy.
THE REMEDY
I shall recommend the conventional remedy for the various
infractions of Section 8(a)(1). See N.L.R.B. v. Bailey Com-
pany, 180 F.2d 278 , 280 (C.A. 6); N.L. R.B. v. Sunbeam
Electric Manufacturing Co., 133 F. 2d 856 , 861-862 (C.A. 7).
Upon the foregoing findings of fact , conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:'
ORDER
The Respondent, Michael Bednasz, d/b/a Hamburg
Delivery, his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating his employees with respect to their union
membership or activities or that of their fellow employees.
(b) Asking employees to report to him on future union
activity of which they may hear.
(c) Threatening to curtail operations if a union becomes the
bargaining representative of the employees.
(d) Withholding wage increases, or stating or implying that
he has withheld wage increases, because of an employee's
union membership or activity.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes
283
(a) Post at its place of business in Hamburg, New York,
copies of the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Director for
Region 3, after being duly signed by the Respondent's repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof, and be maintained by him for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.'
' In the event that the Board 's Order is enforced by a Judgement of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
' In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 3, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employees in
their right to form, join, or assist labor unions, or to refrain
from such activity.
WE WILL NOT question employees as to their union
membership or activity, or that of their fellow em-
ployees.
WE WILL NOT ask employees to report union activity
to us.
WE WILL NOT threaten to curtail opei ations if the em-
ployees choose a union to represent them.
WE WILL NOT withhold wage increases, or suggest
that we have done so, because of an employee's union
membership or activity.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights to form, join, or assist any labor organization.
MICHAEL BEDNASZ,
D/B/A HAMBURG
DELIVERY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo,
New York 14202, Telephone 716-842-3100.