Haynes Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1985

273 N.L.R.B. 1851 (N.L.R.B. 1985)

HAYNES MOTOR LINES 1851
Haynes Motor Lines, Inc. and General Truckdriv-
ers, Chauffeurs, Warehousemen & Helpers
Local No. 270, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent and Edward
Collins. Cases 15-CA-9207,' 15-RC-7037, and
15-CA-9237
8 February 1985
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 September 1984 Administrative Law
Judge James T. Youngblood issued the attached
decision. The Respondent filed exceptions and a
supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 2 and
conclusions 3 as modified and to adopt the recom-
mended Order as modified.
We agree with the judge's conclusion that the
Respondent violated Section 8(a)(1) of the Act by
interrogating employees, threatening employees
with discharge and plant closure, and creating the
impression of surveillance of employees' union ac-
tivities. For the following reasons, however, we
disagree with the judge's finding that the Respond-
ent violated Section 8(a)(1) by berating and dispar-
aging employee Henry Michelle in the presence of
other employees because of his union support and
activity.4
The pertinent facts are as follows. The Union
filed a petition 18 October 1983. On 13 December
1983, 2 days before the election, Respondent's ter-
minal manager Wilber Hubble held a meeting in
the company lunchroom attended by 19 employees,
including Michelle. Hubble informed the employ-
ees that he was not supposed to discuss the Union,
1 The administrative law judge incorrectly listed the second case
number as 15-CA-7037
2 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 pi eponderance 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 The judge correctly found that the Respondent violated Sec 8(a)(1)
of the Act by threatening its employees with plant closure, but he omit-
ted this finding from his Conclusions of Law We will amend the Conclu-
sions of Law, modify the Order, and Issue a new notice to correct this
Inadvertent error
4 Member Hunter agrees with his colleagues in finding the above vio-
lations, and in setting aside the election on the basis of the unlawful activ-
ity Consequently, he finds it unnecessary to pass on whether Terminal
Manager Hubbies remarks to employees about employee Henry Michelle
also violated the Act because they disparaged Michelle
but he had something to say anyway. He stated
that he was a company man and did not want the
Union. He further stated that it would be fine if the
employees wanted the Union, but they should not
follow Michelle as a leader because he was orga-
nizing the Union out of revenge because the Com-
pany did not give him a salesman's job. Hubble
also stated that Michelle was a "parking lot
lawyer" who was gathering information and pass-
ing out authorization cards.
We view Hubble's statements as legitimate ex-
pressions of opinion protected by Section 8(c) of
the Act. Hubble did not suggest that the employees
refrain from engaging in protected concerted ac-
tivities, but merely that they consider whether to
follow Michelle in view of his apparent personal
motives. The statements contained no explicit or
implied threats of reprisal or force which would
tend to coerce employees in the exercise of their
Section 7 rights. Accordingly, we dismiss this com-
plaint allegation.
Notwithstanding this dismissal we conclude, in
agreement with the judge, that the record contains
sufficient evidence of unlawful conduct during the
critical period to warrant setting aside the 15 De-
cember 1983 election.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 2.
"2. By threatening its employees with discharge
and plant closure if they selected the Union as their
bargaining representative, the Respondent has vio-
lated Section 8(a)(1) of the Act."
2. Delete Conclusion of Law 4.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Haynes Motor Lines, Inc., New Orleans,
Louisiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(b).
"(b) Threatening its employees with discharge
and plant closure if they support the Union or any
other labor organization."
2. Delete paragraph 1(d) and reletter the subse-
quent paragraph.
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the election held in
Case 15-RC-7037 be set aside and that said case be
remanded to the Regional Director for Region 15
to conduct a new election when he deems the cir-
273 NLRB No. 221
1852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances permit the free choice of a bargaining
representative.
[Direction of Second Election omitted from pub-
lication.]
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 our em-
ployees about their union support or union activi-
ties, or the union activities of their fellow employ-
ees.
WE WILL NOT threaten our employees with dis-
charge or plant closure if they support General
Truckdrivers, Chauffeurs, Warehousemen & Help-
ers Local No. 270, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Independent, or any other labor
organization.
WE WILL NOT create the impression of surveil-
lance of our employees' union activities by inform-
ing our employees that we know which employees
are responsible for initiating the union organizing
campaign.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
HAYNES MOTOR LINES, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge
This case was tried before me in New Orleans, Louisi-
ana, on March 22, 1984, pursuant to complaints which
issued on January 23 and February 24, alleging that
Haynes Motor Lines, Inc. (Haynes or Respondent), en-
gaged in certain acts and conduct in violation of Section
8(a)(1) of the Act. The Respondent filed an answer ad-
mitting certain jurisdictional allegations to the complaint
but denied the commission of any unfair labor practices
All parties were represented at the hearing, and follow-
ing the close of the hearing the Respondent filed a brief
which has been duly considered.
On the entire record, and from my observations and
the demeanor of each witness while testifying and the
brief herein, I make the following
FINDINGS AND CONCLUSION'
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Louisiana corporation with an
office and place of business located in New Orleans,
Louisiana, where it is engaged in the transportation of
general merchandise. The Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the Respondent admits, and I
find that General Truckdrivers, Chauffeurs, Warehouse-
men & Helpers Local No. 270, a/w Internationl Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Independent (the Union) is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
On October 18, 1983, 2 the Union filed a petition to be
certified as the collective-bargaining representative of the
full-time and regular part-time employees at the Re-
spondent's New Orleans terminal.
Pursuant to a stipulation for certification upon consent
election approved on November 16, the Regional Direc-
tor for Region 15 held an election by secret ballot among
the Respondent's employees on December 15. The Union
was rejected by a 49-38 vote.
On December 20, the Union filed five objections to
the election. The Regional Director overruled four of
these objections, but ordered that a hearing be held to
resolve the Union's Objection 2, which alleged that in a
meeting with employees the Respondent created the im-
pression of surveillance of its employees' union activities
and berated certain prounion employees. He also ordered
that the hearing be consolidated with the hearing on the
complaint in Case 15-CA-9207 On February 27, 1984,
the Board issued its Decision and Order in Case 15-RC-
2037 referring the case back to the Regional Director for
the purpose of arranging a hearing pursuant to the Re-
gional Director's report.
On January 23, 1984, the complaint in Case 15-CA-
9207 issued alleging that since on or about December 13,
1983, the Respondent by its supervisor and agent Butch
Hubbel created the impression of surveillance of employ-
ees' union activities by informing employees that he
knows which employee is responsible for initiating the
union organizing campaign and berated and disparaged
an employee in the presence of other employees because
of his union support and activities. Also on January 23,
1 The facts found herein are a compilation of the credited testimony,
the exhibits, and stipulations of fact, viewed in light of logical consisten-
cy and Inherent probability Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered To the
extent that any testimony or other evidence not mentioned in this deci-
sion may appear to contradict my findings of fact, I have not disregarded
that evidence but have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses Where it may be re-
quired I will set forth specific credibility findings
2 All dates refer to 1983 unless stated otherwise
HAYNES MOTOR LINES 1853
1984, the Regional Director issued an order consolidat-
ing the complaint in Case 15-CA-9207 and the objection
in 15-RC-7036 for a hearing. On February 24, 1984, the
Regional Director issued a complaint in Case 15-CA-
9237 allleging additional violations of Section 8(a)(1) of
the Act, and also consolidating that complaint with the
previous complaint and objection.
Paragraphs 6(a) and (b) of the complaint issued in Case
15-CA-9237 allege that in or about the week prior to
Thanksgiving 1983, and on or about December 3, 1983,
the Respondent through its supervisor and agent Sam
Haynes, at its New Orleans facility, created the impres-
sion of surveillance of employees' union activity by in-
forming employees that he knew which employee is re-
sponsible for initiating the union organizing campaign.
Paragraph 7 of this complaint also alleges that Bill Ra-
belais, the Respondent's supervisor, on various dates be-
tween November 30 and December 16, threatened em-
ployees with discharge, created the impression of surveil-
lance, and interrogated employees regarding their union
sympathies and activities
Edward Collins testified that he was employed by the
Respondent from January 2, 1983, until January 13, 1984.
Collins testified that around the time the employees
learned that there was to be an election he was called
into a meeting conducted by Sam Haynes, Respondent's
president. There were approximately seven other em-
ployees in this meeting. Collins testified that Haynes said,
"He was talking about—how he first started out, he say,
well, I know who kicked off the union deal because his
feelings got hurt. He wanted a position in the office as a
salesman but we turned him down for other reasons."
Collins stated that Haynes said that the Respondent
would close down and move to Baton Rouge if the
Union was to come in. Collins also said that Haynes told
the employees of approximately 75 other companies that
had shut down as a result of union problems.
Collins testified that during the week of the election he
had a meeting with Bill Rabelais in Rabelais' office. Col-
lins stated that Rabelais told him to have a seat, and then
"he asked me whether I am for the Union or not." When
Collins did not respond, Rabelais asked him again if he
was for the Union or not Collins told him that he did
not know himself. Collins stated that Rabelais said that
Haynes will close down, lock up these gates, and take his
business to Baton Rouge if the Union got in
Collins testified that on the day of the election Rabe-
lais was wearing a "Vote No" sign or button. On that
day he went with Rabelais to the tire shed where the
election was being held and that he and Rabelais entered
the tire shed to get a tire. Henry Michelle informed the
Board agent that Rabelais was a supervisor. The Board
agent then asked Rabelais what his title was and when
he was told that he was a foreman, the Board agent told
Rabelais to leave, at which point both he and Collins
left. As they were nearing the mechanics' shop Rabelais
said, "Well, I going to find who's for the union and get
rid of them." Collins testified that on the day after the
election Rabelais came into the terminal in the morning
and stated that "we're going to find out who is for the
union and get rid of them slowly but surely." Collins
said that there were about five to six employees present
in the mechanic shop when this statement was made.
Henry Michelle testified that he has been employed by
the Respondent since June 20, 1981. On December 13, he
was called into the lunchroom along with 18 other em-
ployees for a meeting with Wilber Hubble, the Respond-
ent's terminal manager.
Michelle testified that Hubble said he was not sup-
posed to talk about the Union but he did have something
to say about it anyway. He stated that he was a company
man and did not want the union. He said that if the em-
ployees want the Union that is fine, but do not follow
Michelle as a leader because all he wants is revenge. Mi-
chelle testified that Hubble told the employees that Mi-
chelle had been asking for a saleman's job and when he
did not get it he got the Union for revenge. He stated
that Hubble said he was a parking lot lawyer and that he
was gathering information and passing out union cards;
that he had seen Michelle passing out union cards on the
dock. Hubble admitted telling the employees that he
knew Michelle was the union organizer and he was
doing this because the company was not letting him be a
saleman and that he resented the fact that the company
took away a lunch period. He told the employees that
they should not follow Michelle.
Charles Brister testified that he was employed by the
Respondent in late June 1983, and discharged in Decem-
ber 1983. He testified that sometime during the first
week of December he was present at a meeting where
Sam Haynes talked about the Union. He said there were
six or seven other employees present and, to his knowl-
edge, there were no other supervisors. He stated that
Haynes started off talking about the Union and stating
"how he would not be intimidated by letting the union
come in and tell him how to run his business." Haynes
also said, "before he'd let the union come in and tell him
how to run his business he would close down and sell his
dock equipment, the trucks, and move to Baton Rouge."
Brister stated that he mentioned other trucking compa-
nies that went out of business because of the union. Bris-
ter testified that he attended another meeting held by
Haynes during the second week in December, just before
the election. This meeting took place in the personnel
office and there were about six other employees present,
and again there were no other supervisors present. He
stated that Haynes told them that this would be the last
time that he would see them before the election, and "if
the union got in we wouldn't have to worry about being
back to work on Monday. If the Union didn't get in we
would be working again."
Brister also testified that his supervisor was Bill Rabe-
lais and that he had a conversation with him during the
first week of December. This was in the office behind
the mechanic shop and Johnny Chaney was also present
He stated that Rabelais went over a few things that
Haynes had talked about, his experiences with unions,
and that he would not have anything to do with unions
because they more or less gave him the shaft During
this meeting Brister stated Rabelais asked him if he had
ever been affiliated with the Union. Brister told him he
had when he was in Public Service. He stated that Rabe-
1854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lais repeated what Haynes had said and stated, "that they
would close up, sell the dock equipment, trucks, and
move back to Baton Rouge," if the Union came in. Bris-
ter further stated that following the election he heard
Bill Rebelais say that after this was over, the Respondent
was going to find out the people that head voted for the
Union and they would get rid of the people that had
voted for the Union
Employee Jerry Sterling testified that he attended a
meeting in November 1983 where Sam Haynes spoke
about the Union. He said the meeting took place in Hub-
ble's office He said that there were a number of other
employees present and he named Ed Collins and Lionel
Maxwell, but that there were no other supervisors
present. He stated that "he introduced himself to the
people that didn't know him. And he said the meeting
was about the union, that there was no damn way a
union was going to get in and tell him how to run his
business
In response to a question about how the Union got
started, Haynes said "that a certain person or people em-
ployed got their feelings hurt when they took away the
paid lunch hours." Sterling had a meeting with Rabelais
around that same week, in which Rabelais, "just talked—
basically the same thing that Mr. Haynes had said about
companies closing up because of the union." He said that
Rabelais told him, "I don't know how you feel about the
union but I can tell you Mr. Haynes is not going to let
no union in this company and tell him how to run it." In
response to a question as to what would happen if the
union came in, Sterling stated that Rabelais said "that
Mr. Haynes would put a lock on the gate and we'd all be
without jobs." He stated that Rabelais said that bulldog,
Ed Collins, was for the union and that he was the only
person that he knew was for the Union in the building.
Sterling was asked if he ever had a conversation with
Hubble about the Union and he said that during the last
or middle part of November, Hubble asked him how he
felt about the Union. He said that Hubble told him that
he did not have to answer that, and stated that there is
only one person in this whole company "that's admitted
they'd vote for the union."
The Respondent denies that its supervisors and agents
made statements as attributed to them by the General
Counsel's witnesses and in support of that put on wit-
nesses to contradict this testimony.
Hubble testified that at the meeting on December 13
he stated that he was talking about the conditions that
the Union would get into the Company, and that he was
referring to "them" At this point he told the men let's
quit referring to "them" as we all know that Henry Mi-
chelle is the one organizing the Union He said that he
told the men that he knew Henry was the organizer, and
they knew that he was the organizer, so get it out in the
open. He stated that he told the men that he knew Mi-
chelle was the organizer and passed out the cards, and
that it was important for everyone to realize and under-
stand that Michelle did this as a personal vendetta
against Hubble because of personal things that he had
supposedly done to Michelle. He stated that he did not
use any obscene, profane, or abusive language in talking
about Michelle and that he made no threats He stated
that about five different employees came to him and in-
formed him about Michelle and that at no time did he
ask any employees how they were going to vote. He
stated that in addition he knew that Michelle was respon-
sible for the Union because each time he would go to
him he would have a certain number of employees (two,
three, or four men) gathered around him. When he ap-
proached they immediately broke up and disbanded
John Chaney, a night-shop foreman for the Respond-
ent, was called as a witness for the Respondent and
asked if at any time before or afer the election did he
ever hear Rabelais say that anybody that voted for the
Union would be fired. He answered no. He was also
asked, if he ever heard him threaten anybody about the
Union, and if they were for or against the Union. He
again answered no. He was asked if he ever heard him
make any general statement to any group of people that
union supporters would be fired. He answered no.
William L. Rabelais testified that at no time did he tell
any of the employees that Haynes said he would close
up if the Union came in He testified that he informed
the employees that he did not intend to be intimidated by
the Teamsters Union, but that he did not threaten any of
them with discharge Nor did he ever tell them that if
the Union got in they need not come to work on the fol-
lowing Monday.
Thus, the Respondent denies that it engaged in any of
the conduct above and requested that the complaint be
dismissed in its entirety.
Discussion and Conclusions
I have carefully evaluated the testimony of all of the
witnesses in this proceeding. During the hearing I ob-
served all the witnesses while they were testifying. I ob-
served Henry Michelle, Edward Collins, and Charles
Brister, employees of the Respondent who voted for the
Union, and two of whom were discharged following the
election. The Respondent argues that their testimony
should not be credited because they are hostile employ-
ees, Michelle because he was mad at the Company over
a job, and Collins and Bnster because they had been dis-
charged after the election I have carefully evaluated all
of the testimony and it is my conclusion that the testimo-
ny of the witness for the General Counsel, Henry Mi-
chelle, Edward Collins, Charles Bnster, and Jerry Ster-
ling, had a ring of truth and was straightforward, and
that the testimony of the Respondent's witnesses did not
have such a ring of truth. Therefore I credit their testi-
mony over the general denials of the Respondent's super-
visors
Therefore it is my conclusion that the Respondent did
threaten employees with discharge if the employees se-
lected the Union as their bargaining representative; did
create the impression of surveillance of the employees'
union activities by informing the employees that the Re-
spondent knew which employees were responsible for
initiating the union organizing campaign, and did interro-
gate its employees regarding the employees' union sym-
pathies and the sympathies of the employees' fellow em-
ployees. This conduct occurred prior to the election and
during the critical period It is further my conclusion
HAYNES MOTOR LINES 1855
that the General Counsel has sustained his burden in
proving that the Respondent did engage in the conduct
as alleged in Objection 2 to the election and that this
conduct constitutes a sufficient basis for setting the elec-
tion aside Most certainly when considered with the ad-
ditional conduct as alleged in the complaint the election
must be set aside.
It is clear that employees were interrogated concern-
ing their union activities. It is also clear that Respond-
ent's entire course of conduct was intended to coerce
and intimidate the employees into not voting for the
Union. Thus, the Respondent's statements that they are
aware of the employees that are pushing the Union,
clearly conveys to the employees that their union activi-
ties are under surveillance and clearly create the Impres-
sion of surveillance. Such conduct is clearly coercive
and clearly intimidates the employees in the exercise of
their rights guaranteed by Section 7. See Dutch Boy Inc.,
262 NLRB 4 (1982) Moreover, the Respondent's threats
of discharge, and the statements by the Respondent's
representatives that the Respondent would close its
doors and would move back to Baton Rouge before it al-
lowed the Union to come in, clearly was intended to in-
fluence the employees' vote in the upcoming election.
Under all the circumstances, it is my conclusion that the
Respondent has violated Section 8(a)(1) of the Act as al-
leged in the complaint.
CONCLUSIONS OF LAW
I. By coercively interrogating employees the Respond-
ent has violated Section 8(a)(1) of the Act.
2. By threatening its employees with discharge if they
selected the Union as their bargaining representative, the
Respondent has violated Section 8(a)(1) of the Act.
3. By creating the impression of surveillance of its em-
ployees' union activities by informing its employees that
the Respondent knew which employees were responsible
for initiating the union organization campaign, the Re-
spondent has violated Section 8(a)(1) of the Act.
4. By creating the impression of surveillance of the
employees' union activities by Informing the employees
that the Respondent knew which employees were re-
sponsible for initiating the union organizing campaign
and by berating and disparaging an employee in the pres-
ence of other employees because of his union support
and activity, the Respondent has engaged in conduct vio-
lative of Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
The Respondent, Haynes Motor Lines, Inc., New Or-
leans, Louisiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interogating its employees about their
union support or union activities, or the union sympa-
thies of their fellow employees.
(b) Threatening its employees with discharge if they
support the Union or any other labor organization.
(c) Creating the impression of surveillance of its em-
ployees' union activities by informing the employees that
they know which employees are responsible for initiating
the union organizing campaign
(d) Creating the impression of surveillance of the em-
ployees' union activities by informing the employees that
they know which employees are responsible for initiating
the union organizing campaign and berating and dispar-
aging an employee in the presence of other employees
because of his union support and activity.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facility in New Orleans, Louisiana, and
its other facilities in Louisiana and Alabama, copies of
the attached notice marked "Appendix." Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the election held In Case
15-RC-7037 on December 15, 1983, be set aside and that
this representation case be referred to the Regional Di-
rector for Region 15 for further proceedings in this
matter as he sees fit.
3 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
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"