Hatfield Trucking Service

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 136 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hatfield Trucking Service, Inc. and Randol Schopp-
man' and Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Local Union 533,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Cases 32-CA-2382 and 32-
CA-2731
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 August 1981 Administrative Law Judge
Michael D. Stevenson issued the attached decision.
Charging Party Teamsters Local Union 533 (Team-
sters) filed exceptions 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, 2 and
conclusions 3 and to adopt the recommended
Order.
The initial charge (Case 32-CA-2382) in this
proceeding was filed by Randol Schoppman alleg-
ing that he was unlawfully discharged for filing
safety complaints. The Region found insufficient
evidence to support the charge and refused to issue
a complaint. During the investigation, however,
the Region found evidence that the Respondent
had threatened employees with plant closure, loss
of employment, and reprisals for supporting the
Teamsters. The Respondent and the Region en-
tered into a settlement agreement approved by the
Regional Director 26 February 1980 requiring the
posting of a notice specifically relating to the al-
leged 8(aX1) threats. On 8 May 1980 the Teamsters
filed a charge involving the discharge of Jeffrey
Vinson, the 7 January 1980 layoff, and the previ-
ously settled allegations. On 31 October 1980 the
Region withdrew approval of the settlement and
issued the complaint in Case 32-CA-2731.
The judge found that the Respondent did not un-
lawfully discharge Jeffrey Vinson and that this al-
' Schoppman's name was added during the hearing.
Charging Party Teamsters has excepted to some of the judge's credi-
bility findings. The Board's established policy is not to overrule an ad-
ministrative law judge's credibility resolutions unless the clear preponder-
ance 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.
' As we are adopting the judge's conclusions that the settlement agree-
ment should be reinstated and the complaint dismissed in its entirety, we
find it unnecessary to, and do not, pass on his alternate findings that the
Respondent lawfully discharged Randol Schoppman and unlawfully laid
off several employees.
270 NLRB No. 25
legation was the only one the settlement agreement
did not cover;4 that the layoff of several employees
7 January 1980 was a readily discoverable allega-
tion covered by the settlement; and that the allega-
tions that the Respondent unlawfully discharged
Randol Schoppman and that the Respondent var-
iously threatened employees were both covered by
the settlement. Accordingly, the judge reinstated
the settlement agreement and dismissed the com-
plaint in its entirety. We agree.
We agree with the judge that the settlement
agreement was improperly set aside. As settlements
are not to be treated lightly, the Board will not set
aside a settlement agreement unless there is a
breach of the agreement or a subsequent related
violation of the Act. Henry I. Siegel Co., 143
NLRB 386 (1963). Here there is no contention that
the Respondent breached the settlement and, as dis-
cussed above, there was no related postsettlement
violation of the Act. Accordingly, we shall rein-
state the settlement.
A related issue is whether the layoff allegation is
disposed of by the settlement agreement. Presettle-
ment conduct is barred from subsequent litigation
unless the alleged violations were not known to the
General Counsel, or were not readily discoverable
through investigation, or were specifically reserved
from the settlement. Hollywood Roosevelt Hotel, 235
NLRB 1397 (1978); Laminite Plastics Mfg. Corp.,
238 NLRB 1234 (1978). Compare Laminite Plastics
Mfg. Corp., 238 NLRB 888 (1978), which is specifi-
cally distinguished in 238 NLRB 1234. The judge
concluded that the General Counsel was barred
from litigating the presettlement layoff because it
was or should have been discovered through a
proper investigation. We agree. As discussed
below, we find that no special circumstances exist
here warranting consideration of the presettlement
conduct.
The Respondent's employees began their organi-
zational drive at the Reno, Nevada terminal in mid-
December 1979. On Friday, 4 January 1980, Ter-
minal Manager John Norman learned of the union
activity and interrogated a clerical employee about
who had signed cards. The clerical gave no details
but said (truthfully) that a majority had. Norman
then called Company President John Hatfield in
Sacramento, California, and after the call told the
4 The only postsettlement violation alleged is that Jeffrey Vinson was
discharged because he appeared in the court building where a representa-
tion hearing was taking place. Vinson, who had been laid off 7 January
1980, had been calling the Respondent weekly to see if there was work
available. On 7 February he was in the courthouse and talked briefly to
the Respondent's attorney. Vinson's testimony that he was told the next
week not to call anymore because he had been at the hearing was dis-
credited by the judge. Accordingly, the judge dismissed the allegation on
the merits. We agree.
136
HATFIELD TRUCKING SERVICE
clerical that Hatfield intended to close down the
terminal on Monday. Later that day Norman told a
meeting of employees that Hatfield would close the
business before he would go union because he
could not afford union scale. These threats and the
interrogation were the subject of the settlement.
The next Monday, 7 January, Hatfield came to the
terminal and laid off six employees. The layoff is
alleged to have violated the Act. The Respondent
contends that the layoff was made necessary by its
impending move to a smaller terminal.
The judge concluded that the General Counsel
was barred from litigating the presettlement layoff
because it was or should have been discovered
through a proper investigation. The judge cited the
short timespan (from Friday to Monday) between
the subject of the settlement (the threats) and the
layoff and the closely related nature of the threats
of plant closure and job loss to the layoff. In addi-
tion, there is no indication that the evidence as to
this issue was unavailable to the Regional Office
during its investigation of the charge in Case 32-
CA-2382. 5
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
IT IS FURTHER ORDERED that the settlement
agreement in Case 32-CA-2382 approved 26 Feb-
ruary 1980 is reinstated.
' The record does not show why the General Counsel did not pursue
the matter prior to settlement, and the Oeneral Counsel did not file a
brief with the Board.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENS, Administrative Law Judge.
This case was tried before me at Reno, Nevada, on April
21 and 22, 1981,1 pursuant to an order withdrawing ap-
proval of settlement agreement, order consolidating
cases, consolidated complaint and notice of hearing
issued by the Regional Director for the National Labor
Relations Board for Region 32 on October 31, and which
is based on a charge filed by Randol Schoppman,' an in-
dividual (Case 32-CA-2382), and Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local Union 533,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (Case
32-CA-2731)3 herein called Schoppman and Union, re-
t All dates herein refer to 1980 unless otherwise indicated.
' Schoppman's name was added to the caption of the cae by motion
of the General Counsel.
a The complaint is amended consistent with the motion of the Oeneral
Counsel referred to above.
spectively, on January 2 (Case 32-CA-2382) and on May
9 and October 27, original and first amended charge
(Case 32-CA-2731).' The complaint alleges that Hatfield
Trucking Service, Inc. (Respondent) has engaged in cer-
tain violations of Section 8(a)(1), (3), (4), and (5) of the
National Labor Relations Act (the Act).
Issues
1. Whether Respondent violated Section 8(a)(1) and
(4) of the Act by discharging Steven Vinson because of
his attendance at a Board hearing.
2. Whether the settlement agreement was properly set
aside and, if so, whether Respondent violated the Act.
(a) By terminating Schoppman because it suspected
him of filing a safety complaint with an appropriate state
agency.
(b) By interrogating employees about union activities
and by threatening them with business closure and dis-
charge because of their union activities.
(c) By laying off several employees because of their
union activities.
3. If Respondent committed any or all of the above
violations of the Act, whether a bargaining order should
issue.
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.
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a California corporation
engaged in the interstate transportation of freight busi-
ness and having an office and place of business located in
Stockton and Sacramento, California, and Sparks,
Nevada. It further admits that during the past year, in
the course and conduct of its business, it has shipped
goods and materials valued in excess of S50,000 directly
outside the State of California. Accordingly, it admits
and I find that it is an employer engaged in commerce
and in a business affecting 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 Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Local
Union 533, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
' On February 13, Respondent entered into a settlement agreement of
Caue 32-CA-2382; on February 26, the settlement agreement was ap-
proved by the Regional Director; on October 31, the Regional Director
entered an order withdrawing approval of said agreement alleging that
Respondent committed subsequent violations of the Act.
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent maintains truck terminal facilities in Sacra-
mento and Stockton, California, and Sparks, Nevada.
President of the Company is John Hatfield who spends
most of his time at company headquarters in Sacramento.
Terminal manager at Sparks, Nevada, near Reno, is John
Norman. Both men were witnesses at hearing and ex-
plained that Respondent moved to its present location in
Sparks in mid-January. Prior to the move, Respondent
rented facilities in Reno. It moved after the lessor, Sierra
Pacific Power Company, sent a "Notice of Termination"
to Respondent, dated December 18, 1979. The 30-day
notice required Respondent to vacate its current prem-
ises not later than January 30. (R. Exh. 2.) Lessor's man-
ager of land and water resources, Robert Firth, testified
that the December 18 notice was the first contact be-
tween the lessor and Respondent with respect to the
lease termination. Lessor terminated the lease because it
needed more space. Respondent had leased the premises
from April 1, 1978 (R. Exh. 2), and had subleased part of
the premises to another concern. This independent busi-
ness also vacated the premises in January.
Prior to its move to new quarters in mid-January, Re-
spondent laid off six employees because of a reduced
volume of business which was allegedly caused by the
move to smaller quarters. The employees are Steve
Perry, Ron Bessette, Dale Fletcher, Steve George,
Nancy Ross, and Jeff Vinson. Evidence in the case sug-
gested that Respondent had been losing money prior to
the notice to vacate premises. In addition, prior to the
notice some employees saw sketches of a new facility
which Respondent was planning to construct in the
Reno-Sparks area, or at least was considering. However,
this project was abandoned. Contemporaneous with the
mid-December notice to vacate was union activity which
appears to have begun after the discharge of Schoppman.
Randol Schoppman, a long-distance driver, was dis-
charged by Norman on or about December 13, 1979.
Schoppman had been hired by Norman about 2 months
before his discharge. His routine assignment was to drive
between 11 p.m. and 8 a.m. an empty tractor-trailer to
Respondent's facility in Sacramento where the empty
trailer would be exchanged for a fully loaded trailer
which Schoppman would drive back to Reno. Shortly
before his discharge, Schoppman was suspected by Ter-
minal Manager John Norman of filing an anonymous
complaint with the State of Nevada OSHA agency (G.C.
Exh. 4). Norman received a copy of the complaint
through the mail in late November. Ross, then employed
by Respondent as a secretary, testified that Norman
asked her who filed the complaint; she denied knowing
who did and further denied that either she or another
secretary, Pam Mitchell, had filed it. She further testified
that she told Norman that, if she had filed it, she would
have signed it and she was sorry she had not thought of
it herself. In early December 1979, a Nevada OSHA in-
spector arrived at Respondent's premises. Steven
George, a witness at hearing and an alleged discrimina-
tee, testified that he asked Norman what was going on
and Norman responded that someone had filed an OSHA
complaint and the inspector was checking out the termi-
nal. Later the same day, George again talked to Norman.
This time Norman stated that he had three suspects in
mind as to who filed the complaint-he named Mitchell,
Ross, or Schoppman-and if he found out who it was
the person would be gone. To all of this George dis-
claimed any knowledge.
In his testimony, Norman did not deny the conversa-
tions attributed to him above. Specifically he admitted
talking to George about an OSHA complaint, and testi-
fied that he was upset that the complainant did not first
come to discuss the matter with him before going to the
state agency. Thus, I credit the testimony of Ross and
George above.
Like Ross, Schoppman was also asked by Norman in
early December whether he knew anything about the
OSHA complaint. At that time he denied any knowledge
of the matter. On December 10, Schoppman began his
normal run to Sacramento driving his normal tractor no.
240. The first segment of his work was completed with-
out incident. On the return trip somewhere near the Cali-
fornia-Nevada border, Schoppman testified that he heard
a clattering noise coming from under his seat. His gauges
indicated that he was losing air pressure and all agree
that the air compressor had blown. One of Respondent's
own mechanics testified that this problem can occur at
any time without warning and in a minor and inexpen-
sive repair job.
Schoppman further testified that he stopped at the first
opportunity about 6-7 miles from when the first clatter-
ing occurred. He further testified that he was on a down-
grade at the time of the first noise and was unable to
stop the vehicle safely before the point he did. He denied
that any red light ever went on indicating rapidly falling
oil pressure. After stopping the vehicle, Schoppman re-
ceived a ride to a nearby town where, according to his
testimony, he called Norman at home to tell him what
happened and what he thought was wrong with the trac-
tor. Then, according to Schoppman, Norman pleaded
lack of experience in handling truck breakdowns and he
asked Schoppman to call a tow truck which Schoppman
did. When he called Norman back, Schoppman told him
a tow truck was on the way, but that he could not stay
with the disabled tractor as requested by Norman be-
cause it was zero degrees out. Schoppman stated that he
was going to go home and he did, having been picked up
by Ross with whom he was then living.
Norman recalls a slightly different version of events.
While agreeing that he received Schoppman's call at his
home about 6 a.m., Norman testified that Schoppman re-
ported that the truck had a blown compressor and asked
what did the Company wish to do about the disabled
truck. Schoppman further reported that he had his girl
friend (Ross) with him and he was going home. Norman
testified he called the tow truck and immediately went to
the disabled truck where he found the truck unattended,
parked improperly too close to the road, without flares
or flashers, and covered with oil.
The next day Schoppman called for information on his
assignment that night. Both he and Norman agree that
Norman asked him to drive tractor 232 normally used by
138
HATFIELD TRUCKING SERVICE
a day driver. Schoppman refused to use the truck as he
believed the headlights to be inoperative. According to
Norman, it was the tail lights that had previously not
been working, but Norman himself had fixed them. He
did not tell this to Schoppman.
The next day Norman learned that the truck motor
had been blown up and damaged in excess of several
thousand dollars. According to Norman, Hatfield, and
one of their current employees who testified at hearing
as an expert witness on motors, the damage to the truck
resulted from Schoppman driving too long a distance
after he had notice of the broken air compressor. Indeed,
Steve Perry, who signed a union authorization card
(G.C. Exh. 13), and who is listed in paragraph 10 of the
complaint as an alleged discriminatee, testified for Re-
spondent on the matter here in issue. According to
Perry, he had a conversation with Schoppman sometime
after the truck incident and after Schoppman was termi-
nated, in which Schoppman stated he drove the truck
about 17 miles after the oil pressure had become inad-
equate for the operation of the vehicle. In crediting this
testimony of Perry, I note several factors: First, while
Schoppman was called in rebuttal, he never denied the
conversation with Perry; second, Perry was, in a sense,
testifying against his own interests here even though
Schoppman's case is severable from that involving Perry;
third, Perry's testimony is consistent with that of
Norman, Hatfield, and Jim Cain, Respondent's mechanic
and expert witness. Accordingly, I find in spite of his
many years of experience, his good references, and the
lack of a motive to account for what he did, that
Schoppman negligently caused serious damage to one of
Respondent's trucks and, further, that Schoppman's ac-
count of the incident involving the truck was untruth-
ful.
After Schoppman was terminated, Ross and others
began to organize a union at Respondent's premises.
Ross called Vinson on December 14, 1979, and left a
message with his roommate relative to a union meeting
the next day, a Saturday. The roommate wrote down the
time and location of the union meeting together with
Ross' further admonition, "Don't tell Bennett & Gonder-
man"-two current employees of Respondent. On or
about Friday, January 4, Norman was having lunch at
Vinson's home when he observed Ross' message which
Vinson's roommate had written on a note pad. When
Norman asked Vinson about the message, the latter
denied any knowledge of its meaning."
s In light of my findings below regarding the settlement agreement, I
will not make specific findings regarding Schoppman. However, were I
to analyze this case in terms of Wright Line, 251 NLRB 1083 (1980), I
would find that the General Counsel has proven a prima facie case that
Schoppman's protected activity, i.e., apparent filing of the OSHA com-
plaint, Respondent's belief that Schoppman may have done so, or
Schoppman's belief that the truck assigned to him was unsafe, was a
factor in Schoppman's discharge. See Anco Insulations, 247 NLRB 612
(1980). I would also find that Respondent has proven that Schoppman
would have been fired even in the absence of the protected activity. I
would recommend dismissal of this allegation on its merits.
a The record is unclear if this was the first knowledge Norman had
regarding union activity. Ross said it was, but Steve George testified
that, about January 2 or 3, he was cleaning a company truck off at a gas
station near Respondent's premises when Norman asked him, "Have you
heard anything about the union or has the union contacted you at all?"
After returning to work that day or shortly thereafter,
Norman interrogated Ross about the note and other
union activities. He asked who had signed union cards
and who had attended the meeting. She refused to
answer specifically, but told Norman that a majority of
employees had signed cards. In Ross' presence, Norman
then called John Hatfield, company president, in Sacra-
mento. Ross did not hear the conversation, but Norman
reported to her that Hatfield intended to close down the
facility on Monday. Ross called Hatfield back and he
said that Norman reported employees were going to
walk out so he was going to close the facility down.
When Ross denied a walkout was planned, Hatfield
asked if it was true about the union activity. Ross con-
firmed this and asked Hatfield to come to Reno to talk to
employees about job grievances as the union activity did
not necessarily mean they would be going union. Hat-
field agreed to this.
Later, on Friday, January 4, Norman held a meeting
with Respondent's employees. There, Norman stated that
Hatfield would close down the business before he would
go union as he could not afford to pay union scale. He
himself would quit before he would ever go union.
Norman also told employees they were being used by
Schoppman who was instigating union activity. More-
over, according to Norman, no one would receive prom-
ised raises because Schoppman had blown up a truck
which cost a great deal of money for repairs.7
On Monday, January 7, Hatfield came to Reno and
several employees were laid off. One of the reasons
given by Hatfield at the time was due to an increased
level of employee theft. The primary reason, both as
stated by Hatfield at the time and as presented by Re-
spondent at hearing, was a forced move to smaller quar-
ters.
Those who signed union cards were all of Respond-
ent's employees laid off plus Schoppman terminated
before union activity began, plus two other employees
not laid off, John Gabriel and Anton Bennett. The names
of the employees and the dates of the cards follow:
Nancy Ross, 12/15/79 (G.C. Exh. 3)
Steven George, 12/17/79 (G.C. Exh. 5)
Ronald Bessette Jr. 12/15/79 (G.C. Exh. 6)
Randol Schoppman, 12/15/79 (G.C. Exh. 7)
John Gabriel, 12/17/79 (G.C. Exh. 10)
Jeffrey Vinson, 12/18/79 (G.C. Exh. 11)
Dale Fletcher, 12/15/79 (G.C. Exh. 12)
Steven Perry, 12/15/79 (G.C. Exh. 13)
Anton Bennett, 12/15/79 (G.C. Exh. 14)8
7 The threats of job closure and interrogation about union activities ap-
parent in the above description of Norman's statements were the subject
of the settlement agreement approved by the Regional Director on Feb-
ruary 26.
8 Of this group, George admitted that he was not laid off on January
7, but that on January II he approached Norman and volunteered to be
laid off in place of someone else with less seniority, because he was single
and could afford the loss of the job better than someone else. In addition,
George described his job as foreman. Since his possible status as a statu-
tory supervisor was never litigated, I make no finding on that issue,
either as it affects the bargaining unit or the validity of his layoff.
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The appropriate unit would include the above list of
employees, less Schoppman fired on or about December
13 and less Ross who was a clerical. It would also in-
clude driver Ray Barker hired on or about December 17,
1979, allegedly to replace Schoppman, Wade Gonder-
man, a local driver, and Les Wong, a part-time driver.9
One of the employees laid off was Vinson, a local
driver. In order to comply with state unemployment reg-
ulations, Vinson arranged with Norman to call Respond-
ent weekly. This arrangement continued for about 3 to 4
weeks, each time Norman telling Vinson there was no
work available. Then, Vinson attended a representation
hearing in the Federal courthouse where he encountered
Respondent's current attorney, Shanley. A brief conver-
sation ensued and, the next week when Vinson called
Norman for the routine work check, the resulting con-
versation is sharply disputed. All agree, however, that
Vinson made no further calls to Norman. I will return to
this issue below.
B. Analysis and Conclusions
I. Was Jeff Vinson terminated in violation of Section
8(aXl) and (4) of the Act.' o
After his layoff on January 7, Vinson called Norman
about once a week to determine whether any work was
available. After a few such calls without incident, Vinson
attended a representation hearing at the Federal building
in Reno on or about February 7. While there, he encoun-
tered Shanley, Respondent's attorney then as now. The
momentary meeting occurred in an elevator with neither
person identifying himself to the other. Steven George,
another alleged discriminatee, was also in the elevator,
according to Vinson. Then, allegedly, Vinson said to
Shanley, "What's our chances of winning?" but the latter
made no reply. The next time Vinson called, Norman
said not to call anymore and that Vinson could not use
Respondent as an employment reference in the future, all
because Vinson was at the hearing.
I begin with the fact that an employee has a right pro-
tected by Section 8(a)(1) and (4) of the Act to attend a
Board hearing or otherwise to participate in various
stages of the Board's processes.1 In this case, Vinson
did not testify or even enter the courtroom. However,
his failure to testify does not take him outside the protec-
tion of the Act. 2
o Thus, it appears that a clear majority of the bargaining unit signed
union authorization cards. As to the hiring of Barker, I discredit Nor-
man's testimony that he was hired because no one else was qualified to
replace Schoppman. The parties stipulated that seven of their employees
all had class I licenses authorizing them to drive the type of tractor-trail-
er driven by Schoppman. Norman himself, one of the seven, normally
terminal manager, made the trip several times after Schoppman's termina-
tion. Although the layoffs on January 7 were allegedly made by seniori-
ty, Barker, the least senior employee, was not laid off.
1' I have reversed the chronological order of the issues here since the
Regional Director withdrew approval of the settlement agreement based
only on the alleged subsequent violation involving Vinson. (O.C. Br. 8.)
If this violation falls, so too will the Regional Director's disapproval of
the settlement agreement.
11 Earringhouse Imports, 227 NLRB 1107, 1108 (1977).
t' Earringhouse Imports, supra at 1108 fn. 6.
In this case, however, I cannot credit the testimony of
Vinson as to his subsequent conversation with Norman
as described above. 3s First, there was no evidence that
Shanley knew Vinson or that Shanley somehow reported
the conversation to Norman or Hatfield."' I am unwill-
ing to speculate on this and, under the circumstances, I
find no duty on Shanley to take the stand to dispel the
inference which the General Counsel was attempting to
create.1 s Next, Vinson was not an impressive witness.
His testimony, particularly at the crucial parts, was not
forthright; it was the product of leading questions. (Com-
pare R. Tr. 162, 163.)
Finally, I note the testimony of Norman and one other
employee on this point. Norman denied the posthearing
telephone conversation as reported by Vinson; according
to Norman, he spoke by telephone to Vinson after the
hearing and said that he could not do anything for him
anymore, that there was not work then or in the future,
and that all the jobs were terminated. Norman's weekly
conversations could be construed as untruthfully promis-
ing people future employment. When Vinson called,
Norman asked an employee named Wade Gonderman to
be a witness to one side of the telephone conversation
with Vinson. At hearing, Gonderman generally corrobo-
rated Norman's account of the telephone call. In evaluat-
ing the weakness of the General Counsel's evidence and
the strength of the Respondent's denials, I cannot credit
testimony of Vinson on this point and I will recommend
that this allegation be dismissed.'
2. What is the effect of Respondent having committed
no violations of the Act subsequent to approval of a set-
tlement agreement, on the agreement itself, and on the
other preagreement violations alleged in the complaint.
(a) The settlement agreement'7
It seems clear to me, in light of my ruling above, that
the Regional Director should not have withdrawn ap-
I" Because of my resolution of the credibility issue, it is unnecessary to
decide whether, in mid-to late February, Vinson was still an "employee"
of Respondent. However, it should be noted that Vinson is alleged in par.
10 of the complaint to have been laid off in violation of Sec. 8(aX3) and
(1) of the Act, as of January 7.
14 In this respect, the General Counsel should have notified Shanley in
advance that he, Shanley, would be injected into the case in a personal
way and might therefore have to become a witness at hearing.
'" Since Vinson made no reference to talking to nor even seeing
Norman or Hatfield at the representation hearing, the attempted infer-
ence is that Shanley reported Vinson's presence to his clients.
'6 Two additional points should be mentioned: First, in deciding
whether the Oeneral Counsel has proven a violation regarding Vinson, I
have considered the evidence of Respondent's presettlement conduct
which is admissible and relevant to show Respondent's motive or object
in connection with its postsettlement conduct alleged to be an unfair
labor practice. Sheet Metal Workers Local 80 (Size Heating Ca), 236
NLRB 41, 42 fn. 3 (1978). Although this presettlement conduct shows a
high degree of union animus, it is not sufficient to prove a violation re-
garding Vinson. Second, I am not surprised that Norman was guarded in
his conversation with Vinson and asked Oonderman to be a witness to it.
Not only was Norman receiving legal advice by then, but also Schopp-
man had filed an unfair labor practice charge on January 2, and Respond-
ent had entered into or was about to enter into a settlement agreement of
other matters uncovered. With this background to the telephone conver-
sation, I find it preposterous that Norman would, in effect, admit to
Vinson that Respondent had committed a serious violation of the Act.
"7 For a comprehensive review of Board and court decisions relative
to this issue, see Annotation, Settlement of Unfair Labor Practice Cases,
14 ALR Fed. 25 (1973), and particularly sec. 64, at 131.
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HATFIELD TRUCKING SERVICE
proval for the settlement agreement on October 31. Ac-
cordingly, I will recommend that the Board order rein-
statement of the settlement agreement and I will further
recommend that paragraph 6 of the complaint be dis-
missed because this conduct was the subject of the settle-
ment agreement. (G.C. Br. 8, fn. 7.)18
(b) The other preagreement violations alleged in the
complaint
The General Counsel litigated at hearing the discharge
of Schoppman and the later layoffs of six of Respond-
ent's employees. He also seeks a bargaining order. Out-
side of a brief footnote (fn. 7), the General Counsel does
not discuss the settlement agreement nor how it may
affect his case. For its part, Respondent contends (Br. 2-
3) that the settlement agreement should not have been
vacated, but does not discuss the result of a reinstatement
of this settlement agreement on remaining allegations of
the complaint. In short, neither side has been helpful on
a very important threshhold issue."'
I begin the discussion with a recent statement of Board
law:
... presettlement conduct is barred from unfair
labor practice litigation by a subsequent valid settle-
ment agreement, except to the extent that unlawful
conduct was unknown to the General Counsel or
not readily discoverable through investigation or re-
served from the settlement by the mutual under-
standing of the parties, unless a respondent fails to
comply with the settlement agreement.2 0
Schoppman filed the charge in Case 32-CA-2382 on
January 2 and alleged only that he himself had been un-
lawfully terminated. The record shows that Schoppman
was terminated on or about December 13, 1979. The set-
tlement agreement did not address Schoppman's allega-
tions but, rather, dealt with antiunion threats and interro-
gations which occurred subsequent to Schoppman's dis-
charge. Then, on May 9, the Union filed a charge in
Case 32-CA-2731 which again alleged Schoppman's un-
lawful discharge, and the unlawful layoff of several em-
ployees on or about January 7, an unlawful discrimina-
tion against Vinson on or about February 12, and an un-
lawful refusal-to-bargain charge. The discharge of
Schoppman and the layoff of several other employees
are all presettlement conduct which is barred from litiga-
tion by the settlement agreement which I have found
above has not been breached. 21 Further, while not
argued by the General Counsel, I look to the exceptions
to the general rule as set forth above in B & W Construc-
tion Co., to see whether any apply to the instant case.
i8 See Herald Life Insurance Co., 227 NLRB 1546 (1977).
1" I find that Respondent adequately preserved its position, however
poorly, and that no claim of waiver can properly be found.
so Teamsters Local 215 (B & W Construction Co.), 251 NLRB 1234
(1980); see also Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978).
2' Compare Interstate Paper Supply Co., 251 NLRB 1423, 1424 fn. 9
(1980). 1 note that the two charges in issue here were filed by two differ-
ent charging parties: Schoppman and the Union. However, that fact is
not sufficient to change the ruling barring litigation and findings of the
presettlement conduct.
Specifically, it must be determined whether the pre-
settlement conduct at issue involving Schoppman and the
six laid-off employees was unknown to the General
Counsel or not readily discoverable through investiga-
tion. To show that the General Counsel either knew or
through diligent investigation should have known, wit-
ness these facts. On January 2, Schoppman charged that
he was unlawfully discharged. The subsequent investiga-
tion uncovered, apparently, not proof of Schoppman's
charge, but rather, the unlawful threats which occurred
primarily on January 4. Just 3 days later the alleged un-
lawful layoffs occurred. Respondent did not approve the
settlement agreement until some 5 weeks after that on
February 13. The Regional Director approved it about 2
weeks after that on February 26.22 Thus, the short time
span between the settlement agreement conduct and the
subsequent layoffs, together with the closely related
nature of the charges (i.e., the layoffs immediately fol-
lowed the threats of job loss), convince me that the Gen-
eral Counsel is barred from litigating the presettlement
conduct here. In sum, the General Counsel was duty
bound to investigate all matters encompassed by the
charge and, had he done so, the alleged unlawful layoffs
would have been uncovered.23
Moreover, as was true in Jefferson Chemical Co., supra,
Charging Party is not totally without fault here. The
Union must have known of the alleged unlawful layoffs
shortly after they occurred, or, at least, before the settle-
ment agreement was approved. Yet, it waited until May
9 to file its charge in Case 32-CA-273 1. Based on all the
evidence of record, it is clear that neither one of these
two exceptions apply here.
Nor can I find that the next exception applies-i.e.,
"reserved from the settlement by the mutual understand-
ing of the parties." It is true the agreement contains the
following language:
This Agreement resolves only Case 32-CA-2382
and is not intended to resolve, dispose of, or pre-
clude litigation on any other matter pending or oth-
erwise before the Board.
So far as I can tell, there was no other matter "pending
or otherwise before the Board" when the Regional Di-
rector approved the Agreement. Accordingly, this ex-
ception does not apply. Since I have previously deter-
mined that no subsequent violation of the settlement
agreement occurred, I make no findings on the presettle-
ment conduct alleged to have violated the Act. 2 4 In
32 Apparently Schoppman, though Charging Party, did not approve
the agreement. Nevertheless, there is no claim the agreement was nbt
valid for that reason.
a' Laminite Plastics Mfg. Corp., 238 NLRB 1234 (1978); cf. Jefferson
Chemical Co., 200 NLRB 992, fn. 3 (1972).
a4 Elsewhere in this opinion I have indicated my view of Schoppman's
case on the merits. I have further attempted to resolve key credibility
issues. Now I briefly state my view of the six employees alleged to have
been laid off in violation of the Act. First, I find that Wright Line, supra,
251 NLRB 1083 (1980), does not apply as I find that the General Counsel
has proven not only a prima facie case of unlawful layoffs, but that Re-
spondent's justification was entirely pretextual. Thus, I find that Re-
spondent expected to move prior to receipt of the notice to vacate. Pre-
Continued
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sum, I recommend that the settlement agreement be rein-
stated and that the complaint be dismissed in its entire-
ty.n6
liminary plans and sketches of a new building were prepared and shown
to employees. Schoppman and Ross were once asked to check out possi-
ble new qusrters. Then, coincident with Respondent's discovery of union
activities, it received the notice to vacate premises. At this point, I am
convinced that Respondent abandoned its plans to construct new quarters
purely to spite the Union. Further, on January 4, when Norman interro-
gated employees about union activities and threatened to close the busi-
ness, he made no mention at all about an imminent move to smaller quar-
ters and possible layoffs for that reason. In addition, the retention of
Barker, the most junior member of the unit, while laying off more senior
qualified drivers, cannot be ignored. See NLRB v. American Casting Ser-
ice, 365 F.2d 168, 172 (7th Cir. 1966). Thus, with the caveat expressed
about George above-whether he voluntarily quit his job, or whether he
is a statutory supervisor-I would find on the merits that Respondent laid
off the employees in violation of the Act and that the employees are enti-
tled to reinstatement and backpay. I would also find that a bargaining
order is warranted under the facts and circumstances of this case. These
alternative findings are made in the event the Board determines I erred in
application of B A W Construction Ca, Hollywood Rooserlt Hotel Co.,
supra, and other authorities to the instant cse.
Is As a further basis for my ruling in this case, I rely on Indio Commu-
nity Hospital, 225 NLRB 129 (1976), and Fine Organics, Inc, 214 NLRB
158, 160 fn. 5 (1974).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(aX)(1) and (4)
of the Act by discharging Vinson.
4. The parties hereto entered into a settlement agree-
ment which was approved on February 26, 1980, and
Respondent has not failed to comply with it and has not
engaged in any postsettlement unfair labor practices.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommendeda'
ORDER
The settlement agreement approved on February 26,
1980, is reinstated and the complaint is dismissed in its
entirety.
'I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
142