Herbst Supply Co., Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 448 (N.L.R.B. 1976)

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herbst Supply Co., Inc. and Paul Willemssen. Case
20-CA-10235
January 19, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On September 26, 1975, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in answer thereto.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings,' findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
AMENDED CONCLUSION OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 3:
"3. By interrogating its employees about their
union activity, by soliciting grievances, by telling its
employees "they should seek employment elsewhere if
they wanted to be represented by a union, by telling
its employees that its Fairfield facility never would
become unionized, and by telling its employees that
it would close its Fairfield facility if the facility be-
came unionized, Respondent interfered with, re-
strained, and coerced its employees in the exercise of
their rights guaranteed to them by Section 7 of the
Act in violation of Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent,
Herbst Supply Co., Inc., Fairfield, California, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order as so
modified:
1. Substitute the following for paragraph 1(a):
"(a) Interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed to
them by Section 7 of the National Labor Relations
Act, in violation of Section 8(a)(1) of said Act, by
interrogating its employees about their union activi-
ty, by soliciting grievances, by telling its employees
they should seek employment elsewhere if they want
to be represented by a union, by telling its employees
that its Fairfield facility never will become union-
ized, and by telling its employees that it will close its
Fairfield facility if the facility became unionized."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Administrative Law Judge erred by not permitting the General
Counsel to amend the complaint to include an allegation that Respondent
additionally violated Sec. 8(a)(1) of the Act by soliciting employee griev-
ances at a meeting in March 1975 At that meeting , which was called in
response to the union activity, Supervisor Brownlee committed several un-
fair labor practices including interrogations and threats that the trucks
would be moved if the employees unionized. Brownlee also asked every
driver if he had any complaints or bitches, stating that he wanted to get
them out on the table at that time This statement by Brownlee, especially
when viewed in the context of extensive unfair labor practices , some of
which were committed concurrently with the solicitation of complaints,
leaves no doubt that the Respondent at least nmpliedly promised action to
correct the complaints Certainly , Respondent, by its conduct herein, can-
not be considered as having rebutted this implied promise Accordingly, we
grant the General Counsel's motion to amend the complaint and we find
that Respondent violated Sec . 8(a)(I) by soliciting grievances at the meeting
in March 1975
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act and has ordered us to post this notice. We
intend to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of rights guaran-
teed to them by Section 7 of the National Labor
Relations Act, in violation of Section 8(a)(1) of
said Act, by interrogating our employees about
their union activity, by soliciting grievances, by
telling our employees they should seek employ-
ment elsewhere if they want to be represented by
222 NLRB No. 73
HERBST SUPPLY CO., INC. 449
a union, by telling our employees that our Fair-
field facility never will become unionized, and
by telling our employees that we will close our
Fairfield facility if the facility becomes union-
ized.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed to them
in Section 7 of the Act.
HERBST SUPPLY CO., INC.
DECISION
STATEMENT OF THE CASE
RUSSELL L STEVENS, Administrative Law Judge: This
matter was heard at Fairfield, California, on August 7,
1975.1 The complaint, issued on June 24, is based on an
initial charge filed on May 13 and an amended charge filed
on June 23 by Paul Willemssen, an individual. The com-
plaint alleges that Herbst Supply Co., Inc., hereinafter re-
ferred to as Respondent, violated Section 8(a)(1) 2 and (3)
of the National Labor Relations Act, as amended, herein-
after referred to as the Act.
FINDINGS OF FACT
leum products. At the times relevant herein, Respondent
employed five or six full-time tank truckdrivers at Fair-
field, California, under the supervision of Jack Brownlee
(hereinafter Brownlee).'
Paul Willemssen (hereinafter Willemssen), the Charging
Party herein, was employed by Respondent approximately
mid-December 1973 and worked as a truckdriver on a reg-
ular basis until May 9, 1975, when he was laid off by
Brownlee. Willemssen was off work about the last week in
April, because of, an injury.
Union activity commenced at Respondent's Fairfield fa-
cility with preliminary discussion among the drivers in Sep-
tember or October 1974.4 Thereafter, the drivers occasion-
ally discussed the possibility of organizing the Fairfield
facility, with Willemssen being one of the drivers most in-
terested and most active in organizational efforts. In Feb-
ruary a person who identified himself as a union represen-
tative called Brownlee on the telephone and Brownlee
advised him to visit the facility if he wanted to talk about
the Union, but the visit was not made. Brownlee called a
meeting for the drivers in March, at which the Union,
among other things, was discussed.
The complaint alleges that Brownlee illegally threatened,
interrogated, and made antiunion statements to employees
and unlawfully laid off Willemssen. Respondent denies the
allegations and contends Willemssen was selected for lay-
off occasioned by a drop in business and because he was
an unsatisfactory employee.
I . BUSINESS OF RESPONDENT
Respondent, a California corporation with its principal
place of business in Las Vegas, Nevada, and with a gaso-
line storage facility in Fairfield, California, is engaged in
the wholesale distribution and transportation of petroleum
products. During the past year Respondent, in the course
and conduct of its business operations, sold and supplied
goods valued in excess of $50,000 directly from its Fairfield
facility to customers located outside the State of California.
I find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers' Lo-
cal Union 490, hereinafter referred to as the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent engages in sale and transportation of petro-
i All dates herein are within 1975 unless stated to be otherwise
2 In his brief , General Counsel moved to add an 8 (a)(1) allegation to the
complaint , based upon proof adduced at trial relative to solicitation of em-
ployee grievances . That motion is denied, since there was no implied or
express promise to act upon those grievances . UARCO, Inc, 216 NLRB No
2 (1974).
A. Alleged Interrogation
Paragraph VI(a) of the complaint alleges that Brownlee
illegally interrogated an employee in March 1975.
Robert King (hereinafter referred to as King), a truck-
driver for Respondent, testified that in March or the last
part of February, Brownlee "just asked me if I'd heard any
union talk going on," and King replied "yes".
Brownlee was not asked about the King conversation,
but he was asked, "what employees you talked to about the
Union?" Brownlee replied, "I just asked them if there'd
been anything said about the Union." "Maybe somebody
said `Yeah, there'was,' and I'd say, `Just forget it."'
King testified in a credible manner, and his testimony is
supported by that of Brownlee. No reason was given for
Brownlee's interrogation, and it is clear that the reason
could only be to obtain information about union activities
of the drivers. The interrogation was not isolated, nor was
it made in ajocular manner. Having been made against the
background of Brownlee's dislike of the Union,5 and the
other violations discussed below, the interrogation was
coercive.
It is found that this allegation of the complaint is proved.
3 Brownlee had, and exercised, authority to hire and fire, and he directed
the work of all tank truckdnvers at Fairfield Brownlee is found to be a
supervisor within the meaning of the Act.
Testimony on commencement of union activity was vague and incon-
clusive The date could have been as early as June or as late as December
1974. That date is not determinative of any issue herein
5 Acknowledged by Brownlee
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Alleged Interrogation
Paragraph VI(b) of the complaint alleges that, in late
March or early April, Brownlee illegally interrogated an
employee during a telephone conversation.
The telephone conversation apparently referred to was
related by Willemssen as having occured in March and was
as follows:
He (note: Brownlee) dust stated that he understood
that I was talking or someone was talking and people
had said that I was one of the instigators that was
talking about going union and that he was going to
have a meeting, which I think was on a Monday. This
was on a Saturday, I believe. And that he wasn't going
to have any union in the yard, and nobody was going
to mess him up,
The conversation, if credited, shows union animus on
the part of Brownlee, and includes a proscribed statement.
However, the alleged conversation does not encompass an
interrogation of Willemssen. In any event, Brownlee de-
nied the statement attributed to him by Willemssen. Gen-
eral Counsel argues that Willemssen, rather than Brownlee,
should be credited because (a) Brownlee knew of
Williamssen's union activity, and (b) Brownlee talked
against the Union during the March meeting. That argu-
ment is of a non sequitur nature. Based upon observation of
the witnesses and their presentation on the stand, Brownlee
is credited.
It is found that this allegation of the complaint is not
proved.
C. Alleged Statement
Paragraph VI(c) of the complaint alleges that, in late
March or early April, Brownlee told Willemssen in a tele-
phone conversation that the Fairfield facility never would
become unionized.
Willemssen testified to the conversation set forth in
paragraph VI(b) above.
Brownlee testified he never discussed the Union with
Willemssen prior to the March meeting he held with the
drivers. Brownlee acknowledged, however, that he told
Willemssen during a telephone conversation in March that
"we were going to have a meeting Monday morning with
all the drivers" and asked Willemssen to be there. The only
basis upon which this issue can be resolved is that of credi-
bility. The testimony of Willemssen and Brownlee differs
on several subjects, and the testimony of both is partially
doubtful. However, that of Willemssen seems less credible
in that it contains evasions and inconsistencies, as dis-
cussed below. Based upon observation of the two witnesses
on the stand and upon their testimony on other issues,
Brownlee is credited on this issue.
It is found that this allegation of the complaint is not
proved.
D. Alleged Statement
Paragraph VI(d) of the complaint alleges that, in late
March or early April, Brownlee told employees they should
seek employment elsewhere if they wanted to be repre-
sented by a union.
King testified about the March meeting called by
Brownlee and stated:
The main thing that I remember, Jack asked ev-
erybody there if anybody, had any bitches. Nobody
said anything and he said, "Well, we're not going to go
union." He said, "If you want a union job, I suggest
you go find a union job."
Brownlee did not testify concerning this alleged state-
ment, nor is there other testimony or evidence contra-
dicting King's testimony. King is credited.
It is found that the alleged statement was made, that it is
coercive, and that it was intended to discourage union ac-
tivity. This allegation of the complaint is proved.
E. Alleged Threat
Paragraph VI(e) of the complaint alleges that, in late
March or early April, Brownlee threatened employees that
they would be discharged for engaging in union activity.
The testimony relied upon by the General Counsel to
support this allegation is Willemssen's statement that, be-
tween the March meeting and April 27, Brownlee com-
mented to him that "he knew there was something going
on," and that the person caught doing it was "going down
the road."
Willemssen testified that he talked with Brownlee about
the Union on about six occasions between September 1974
and May 9. Jess Lujan (hereinafter Lujan), a truckdriver
for Respondent, credibly testified that Willemssen told
Brownlee during the March meeting, "I suppose you think
I'm the instigator of all this," and Brownlee replied, "Well,
a couple of people have told me so, yes." Brownlee credi-
bly testified that he knew from about his time of employ-
ment by Respondent in May 1974 that Willemssen was
talking about the Union. The record clearly shows, and it is
found, that Brownlee knew at all times relevant herein that
Willemssen was an active union advocate. In view of that
fact, the statement relied upon by the General Counsel ap-
pears improbable. Based upon that improbability, and
upon observation of the witnesses and discrepancies in
Willemssen's testimony discussed below, Brownlee's denial
is credited.
It is found that this allegation of the complaint is not
proved,
F. Alleged Statement
Paragraph VI(f) of the complaint alleges that, in late
March or early April, Brownlee told employees that the
Fairfield facility never would become unionized.
Willemssen, Jack Leeper (hereinafter Leeper), and King
testified that the alleged remark, or one of similar import,
was made by Brownlee at the March meeting.
Brownlee testified as follows:
Well, I told them all, and I believe they all knew how
I felt, that I don't believe in the Union. I was in the
Union once for quite a few years, and I told them my
HERBST SUPPLY CO., INC.
own feeling was that I figured this job would never -go
union, but that was my own feeling. It was not the
Company's feeling. It, was my own.
Respondent's defense to the charge is that Brownlee did
not make the alleged statement as one of fact and, further,
that it was made as a statement of personal opinion, not
binding upon Respondent.
The law is clear that a statement such as the one alleged
in the complaint is violative of the Act. Muncy Corporation,
211 NLRB 263 (1974); Walgreen Co., 206 NLRB 124
(1973); Edwin P. Omernick d/b/a American Building Com-
ponents Company, 203 NLRB 811 (1973).
Assuming, arguendo, that Brownlee's statements were
made as his own opinion, that fact would not alter the legal
conclusion under the facts here presented. First, Brownlee
had hired several of the drivers, directed the work he as-
signed to all drivers at the Fairfield facility, and was the
"boss" of the drivers in every sense of the word. Having
placed Brownlee in such a strong supervisorial position,
Respondent cannot be heard to deny that it is bound by
Brownlee's statements. Brownlee testified that he told
Respondent's management prior to the March meeting
that he was going to meet with the drivers, and he also
testified that he reported to management after the meeting
on the discussions held with the drivers. Second, use of the
word ".feel" by Brownlee would not dilute the threat im-
plied by the rest of the statement. Solo Cup Company, 208
NLRB 976 (1974).
It is found that this allegation of the complaint is proved.
G. Alleged Statement
Paragraph VI(g) of the complaint alleges that, in late
March or early April, Brownlee told employees that Re-
spondent would close its Fairfield facility if the Union was
successful in its organization attempts.
Leeper, a truckdriver for Respondent, testified 6 that
Brownlee threatened to move the trucks to a different lo-
cality if the Fairfield facility were to become unionized.
Lujan testified to the same effect, and Brownlee acknowl-
edged making such a statement, although Leeper and
Brownlee stated that Brownlee was expressing a personal
opinion at the time.
Respondent's defense to this charge is similar to its de-
fense in VI(f) above, in that it claims not to be bound by
Brownlee's_expression of his own opinion. However, that
defense fails here, for the same reasons it failed above. The
statement was made by a supervisor and constituted a
veiled threat. But for the element of personal opinion, the
alleged statement is violative of the Act. Spartus Corpora-
tion, 195 NLRB 134 (1972); Solo Cup Co., supra. The ex-
pression of personal opinion, under the facts herein, does
not alter the legal consequences. Solo Cup Co., supra
It is found that this allegation of the complaint is proved.
6 The date referred to in this testimony is confused, but whether it was in
March or May is irrelevant, since both dates are within the 10(b) period
r The complaint does not include this incident as an alleged violation of
the, Act
451
H. Alleged Interrogation
Paragraph VI(h) of the complaint alleges that, in late
March or early April, Brownlee illegally interrogated em-
ployees.
King testified that, a week or so after the March meet-
ing, Brownlee asked him if anyone had spoken to him
about the Union and King replied no. Lujan testified to the
same exchange with Brownlee at about the same time.
In view of Brownlee's acknowledgment of conversations
with employees about the Union, and based upon the ap-
pearance and demeanor of the witnesses, King and Lujan
are credited.
It is found that this allegation of the complaint is proved.
I. Alleged Layoff of Willemssen
Paragraph VII of the complaint alleges that, on or about
May 9, Brownlee laid off Willemssen because of the latter's
union or concerted activities.
Willemssen worked regularly on day shifts until early
1975, when he was assigned to night shifts. Brownlee testi-
fied that Willemssen was put on night work for three rea-
sons: first , Willemssen failed to make a hauling run he was
scheduled to make to Modesto, California, in February,
without notifying Brownlee or anyone else in advance; sec-
ond, Willemssen consistently failed, after repeated warn-
ings, to keep his truck clean; third, Willemssen'was needed
on night runs to Sparks, Nevada, where he was qualified to
load. Lujan, an impressive and forthright witness who is
credited, testified that he changed shifts with Willemssen
after being told to do so by Brownlee, who said the reasons
were that Willemssen did not keep his truck in proper con-
dition and that Willemssen was not dependable. Lujan said
he complained to Brownlee many times about Willemssen
not keeping his truck (shared with Lujan) clean, and he
stated that he started working days instead of Willemssen
in February, just after Willemssen missed 4 days of work
following failure to make the Modesto run. Lujan said it is
common knowledge at the yard, that failure to keep trucks
clean is cause for transfer to night shifts, or for discharge.
Willemssen testified that it is the duty of drivers to keep
trucks clean and that he kept his as clean as the other
drivers did; however, he also testified Brownlee talked with
him between 4 and 10 tunes about keeping his truck clean.
Willemssen acknowledged that he missed the run to Mo-
desto in January or February, and thereafter did not go to
work for a few days. He said Brownlee called him on the
telephone after 2 days' absence and that, thereafter, the
two discussed the problem in Brownlee's office, at which
time Willemssen was reprimanded. Willemssen testified he
was changed from day to night shifts 1 day after the March
meeting held by Brownlee.
Willemssen's version of the shift change is not credited.
It is clear, and found, from the testimony and specifically
from Lujan's credited version of the incident, that Willems-
sen was changed from day to night shifts in January or
February, rather than the day after the 'March meeting,'
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and for the reasons stated by Brownlee.
Brownlee's version of Willemssen's layoff is as follows:
Brownlee had concluded that a layoff was required, and he
talked in the office with Willemssen on May 9. Brownlee
said the reason for Willemssen's layoff was: ,
Because work was short and we were going to have to
lay some drivers off and he wasn't doing his job, I
didn't feel, according to the rest of the drivers that was
there. He wasn't keeping his truck clean, and I never
knew for sure if I could get ahold of hiiii.
Brownlee said Willemssen replied, "Good" and left.
Willemssen testified:
He just walked into the office and said, "I'm going to
have to lay you off," and I said, "Oh." And he said,
"Yeah." He said, "Things are really getting slow
here," and he said, "I'm going to have to lay some
other guys off too." He said, "I'll prohably be driving
myself once in a while."
In testifying that a bona fide layoff, rather than a dis-
charge for union or protected concerted activity, was in-
volved, Brownlee said another driver (Ronnie Salvador)
was laid off 3 or 4 days after Willemssen was laid off;
neither Salvador nor Willemssen has been called back or
replaced to date; three trucks have been in operation by
Respondent at all times, and Respondent presently em-
ploys four drivers in addition to Brownlee, who sometimes
drives. There is nothing in the record to contradict or cast
doubt upon this testimony, and it is credited.
Willemssen testified that there was an informal seniority
system in effect, whereby, "it was normal practice, if it got
slow, the lowest man in seniority would go first." Brownlee
testified "there was no set way of laying them off or senior-
ity. I mean if a man doesn't do his work, then he's the first
one to go." He said he once told Willemssen, "there wasn't
such a thing as seniority." It was not shown at the hearing
that there were layoffs prior to May 9, nor is there other
evidence or testimony relative to seniority. It is found that
Respondent has no seniority system, and Brownlee's testi-
mony on this subject is credited.
In explaining why Willemssen, rather than some other
driver, was selected for layoff, Brownlee cited a number of
incidents involving Willemssen. Included were unsafe and
heedless driving, speeding on the highway, refusal to keep
his truck clean, being undependable (particularly the Mo-
desto incident), refusal to obey orders, constant complain-
ing about work hours and workdays, inability to get along
with other drivers, putting the wrong kind of gas in a tank,
and blocking speed charts. Brownlee said he either repri-
manded or talked with Willemssen on many occasions con-
cerning his dirty truck, weekend work, speeding, blocking
speed charts, reckless driving, refusal to do assigned jobs,
and putting the wrong gas in a tank. Willemssen testified
that his work quality was equal to that of the other drivers,
that he never received any comments to the contrary, and
that Brownlee only talked with him about his job on a
couple of occasions in a routine manner. In view of the
credited, supporting testimony of Lujan, and the frequent
discrepancies in and the unconvincing testimony of Wil-
lemssen, Brownlee's testimony concerning the instances he
related is credited.
However, even assuming the fact that Willemssen was an
unsatisfactory employee and that Respondent had no se-
nionty system, the question remains whether Willemssen
was selected for layoff because of his union or protected
activity, or because his work was not satisfactory.
Brownlee has union animus as shown by his acknow-
ledgment and his violations of the Act discussed above. He
said he learned of Willemssen's union activity in June
1974, shortly after starting to work for Respondent in May
1974. He testified that, prior to the March meeting, he did
not have to ask the drivers who was behind the union
movement since he knew who it was. It is clear, and found,
that Brownlee knew at all times relevant herein that Wil-
lemssen was the principal union activist in the yard. Yet, in
spite of such an obvious situation, Brownlee did not grasp
the clear opportunity to fire Willemssen for the latter's fail-
ing to make a scheduled run to Modesto in January or
February 1975. Further, Brownlee had ample cause to fire
Willemssen on several occasions because of his poor work
habits and refusal to carry out orders, yet he did not fire
him. If Brownlee had laid Willemssen off after first learn-
ing of the latter's union activity, the case possibly would
have been cast in a different light; but such is not this case.
It is clear that Brownlee simply tolerated a poor worker
until he was able to drop him because he no longer was
needed'
General Counsel's contention is that Brownlee thought
he put the union matter to rest during the March meeting
and that he suddenly learned on May 9 that he was in
error .9 That knowledge allegedly was acquired, "soon after
Brownlee learned of Willemssen's discussion with Leeper
the previous evening concerning the Union." Upon gaining
such knowledge, it is contended, Brownlee promptly "laid
off" Willemssen.
Apparently Willemssen did talk with Leeper the evening
of May 8, but it is not at all clear what was said, or what
happened thereafter. Events of May 9 may create a suspi-
cion unfavorable to Respondent, but two factors preclude
that suspicion from rising to an inference.
First, the only way in which Brownlee is alleged to have
learned of the Willemssen-Leeper conversation was from
Leeper. However, Leeper's testimony on this subject is a
hodgepodge of confusion, from which it is not possible to
draw dependable conclusions. Leeper said he told Brown-
lee, Papin, King, and Lujan about his conversation with
$ The testimony concerning Brownlee's attempts (or, allegedly, the lack
thereof) to give work to Willemsen after the latter 's layoff has been carefully
considered The testimony is conflicting and no resolution thereof is made,
since it is not relevant Even if it is assumed Brownlee did not try to give
work to Willemssen, and even if it is assumed, arguendo, that the latter was,
in effect, fired rather than laid off (a fact not shown) the question of the
reasons therefor still remains As found therein, Willemssen was laid off (or
fired) because of business requirement and because of his poor work and
poor attitude, not because of his union or other protected activity.
9 General Counsel argues that union activity was at a standstill between
the March meeting and May 9, but the record indicates continuing union
discussions during that period A sudden flareup of activity that would
precipitate concern on the part of Brownlee does not appear to have oc-
curred
HERBST SUPPLY CO., INC.
Willemssen, because Willemssen told him to.10 Moments
later, Leeper testified, "If I remember correctly, I told them
singly, and I can't remember whether Jack (note: Brown-
lee) was present or not." Leeper then said he could not
recall whether he related the conversation to Brownlee. In
his affidavit given to the Board, Leeper said he related the
conversation to drivers Papin and Lujan "in front of
Brownlee." Equally confusing is Leeper's testimony about
Brownlee's alleged statement to the effect, "Forget it;
there's not going to be any union here." It is not possible to
ascertain from Leeper's testimony whether the statement
was made during the March meeting or during the May 9
conversation, or at some other time. General Counsel ar-
gues in his brief that the statement was made May 9, but, if
that is so, it does no more than confuse the record even
more, and it can be based upon no more than conjecture.
Of further interest is the fact that Leeper's testimony is
devoid of clear recitation about the substance of the May 8
conversation. It appears that Willemssen merely told Leep-
er to advise the other drivers (including Brownlee) that
Willemssen "was still interested" in the Union. That hardly
seems likely to be a spur to action on Brownlee's part, since
he had known for a year that Willemssen was the principal
union activist, and he had not already fired Willemssen
even though he had good cause to do so.
Second, Willemssen testified at length about his injury
and his being off work because of it for one week in April.
Willemssen contends that he advised Brownlee April 29
that he was ready to go back to work and that he returned
to work about May 3, after a few days' delay in obtaining
a doctor's release requested by Brownlee. Willemssen said
he worked only a few hours between his return to work and
his layoff May 9. That may well be true, but if the Leeper-
Willemssen conversation triggered precipitate action May
9 by Brownlee, Willemssen's implied claim that he was
being punished between May 3 and May 9 for union activi-
ty is inconsistent with his own case. If the union front was
quiet after the March meeting, as argued by General Coun-
sel, then the most logical explanation for Willemssen's
shortage of work from May 3 to May 9 is that given by
Brownlee-work was down and Willemssen was not need-
ed. Such a state of affairs makes it appear that the union
matter really wasn't -of great concern to Brownlee, and he
laid off Willemssen May 9 and Salvador 3 or 4 days later.
In view of the foregoing, it is clear that the General
Counsel has not sustained the burden of proving the al-
leged violations.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described 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 disputes
burdening and obstructing commerce and the free flow of
commerce.
10 No reason for Willemssen to ask Leeper to relate the conversation to
Brownlee (a most unlikely request) appears
V. THE REMEDY
453
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist
therefrom and to, take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record," I hereby make the following:
CONCLUSIONS OF LAW
1. Herbst Supply Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters, Chauffeurs, Warehousemen and Helpers'
Local Union 490 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating its employees about their union ac-
tivity, by telling its employees they should seek employ-
ment elsewhere if they wanted to be represented by a
union, by telling its employees that its Fairfield facility
never would become unionized, and by telling its employ-
ees that it would close its Fairfield facility if the facility
became unionized, Respondent interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed to them by Section 7 of the Act in violation of
Section 8(a)(1) of the Act.
4. Respondent did not, through alleged conduct, violate
Section 8(a)(1) of the Act by conduct alleged in paragraphs
VI(b), (c), and (e), nor did Respondent violate Section
8(a)(3) and (1) of the Act by discharging Paul Willemssen
because of his union or concerted activities, as alleged in
paragraph VII of the complaint.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 12
Respondent Herbst Supply Co., Inc., Fairfield, Califor-
nia, its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employ-
ees in the exercise of rights guaranteed to them by Section
7 of the National Labor Relations Act in violation of Sec-
tion 8(a)(1) of said Act, by interrogating its employees
about their union activity, by telling its employees they
should seek employment elsewhere if they wanted to be
represented by a union, by telling its employees that its
Fairfield facility never would become unionized, and by
"General Counsel's motion to correct transcript, made in his brief, is
uno2pposed and hereby is granted
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telling its employees that it would close its Fairfield facility
if the facility became unionized.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in exercise of the rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action -which , I find,
will effectuate the policies of the Act:
(a) Post at its Fairfield, California , place of business
copies of the attached notice marked , "Appendix." 13 Cop-
13 In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
ies of said notice, on forms provided by the Regional Di-
rector for Region 20, after being duly signed by a represen-
tative of Respondent , shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees customarily
are posted . Reasonable steps shall be taken by Respondent
to insure that said notices are not altered , defaced , or cov-
ered by any other material.
(b) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the -date of this Order , what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that paragraphs VI(b), (c),
(e), and VII of the complaint be dismissed in their entirety.