Howard Johnson Distribution Center

National Labor Relations Board - Board Decisions

Jul 9, 1980

250 N.L.R.B. 492 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Johnson Company, d/b/a Howard Johnson
Distribution Center and Dallas General Drivers,
Warehousemen and Helpers Local 745, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America. Case 16-CA-8643
July 9, 1980
DECISION AND ORDER
By MEMBERS JENKINS, PENEE.IO, AND
TRUESDAI.E
On March 18, 1980, Administrative Law Judge
Jay R. Pollack issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
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 and
hereby orders that the Respondent, Howard John-
son Company, d/b/a Howard Johnson Distribution
Center, Arlington, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.'
i We have provided in our new notice language which conforms to
par. 2(a) (lf Ihe Administrative Law Judge' recommended Order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
250 NLRB No. 71
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL. NOT fail to grant or withhold
wage increases to employees in order to dis-
courage membership in or activities on behalf
of Dallas General Drivers, Warehousemen and
Helpers Local 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other
labor organization.
WE WII.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WlIlt. adjust and pay retroactively the
wage rates of the drivers and warehousemen
employed at our Arlington, Texas, distribution
center by conforming such rates to those
which would have otherwise been put in effect
in April 1979.
HOWARD JOHNSON COMPANY, D/B/A
HOWARD JOHNSON DISTRIBUTION
CENTER
DECISION
STATI'MEI NT OF THI- CASE
JAY R. POI I.ACK, Administrative Law Judge: The pro-
ceeding was heard before me in Forth Worth, Texas, on
January 15, 1980. The complaint, which issued on Sep-
tember 6, 1979, was based upon a charge filed by Dallas
General Drivers, Warehousemen and Helpers Local 745,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, here-
inafter the Union, on August 8, 1979. The sole issue
raised by the pleadings relates to whether Howard John-
son Company, d/b/a Howard Johnson Distribution
Center, Respondent herein, violated Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, by
failing and refusing to grant wage increases in April 1979
to its drivers and warehousemen, pursuant to its estab-
lished practices. The parties were permitted, during the
hearing, to introduce relevant evidence, examine and
cross-examine witnesses and argue orally. Post-trial briefs
have been received from the General Counsel and Re-
spondent which have been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of each witness as he testified on
the stand, I hereby make the following:
492
HOWARD J()HNSON I)IST-RIHIB TI)N (TNI FR
FINI)IN(,S OI F (I
I. JURISDI)I( II)N
Respondent, a Maryland corporation with officers lo-
cated throughout the United States, is engaged in the op-
eration of a distribution center in Arlington, Texas, the
only facility involved herein. During the 12 months prior
to this proceeding, Respondent sold and shipped food
products valued in excess of S50,0(X) directly to custom-
ers located outside the State of Texas.
The complaint alleges. the answer admits, and I find
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. 'I'HI IABOR ORGANIZATION INVOI Vtl)
The complaint alleges and the answer denies that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. No evidence was offered on this
issue. However, I take judicial notice of the Board's de-
cision in The Howard Johnson Company d/b/a Howard
Johnson Distribution Center, 242 NLRB 1284 (1979).
involving the certification of the Union as the exclusive
bargaining representative of the employees herein in-
volved.' Based upon the Board's resolution of this same
issue between the same parties, I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
ill. THF. A I.I.LGt I) UNFAIR l.ABOR PRACI'ICI:S
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) and (1) of the Act in April 1979, by failing
and refusing to follow its past practice of granting wage
increases to its drivers and warehousemen employed at
Respondent's Arlington, Texas. distribution center. Re-
spondent denies that it had any such practice of granting
wage increases and further denies that it engaged in any
unfair labor practices.
In April 1978, several employees at Respondent's Ar-
lington, Texas, distribution center visited the union hall
and began an organizational drive. On August 7, 1978, an
election was conducted pursuant to a Stipulation for Cer-
tification Upon Consent Election. The tally was nine for,
and none against, the Union; there were no challenged
ballots. Respondent filed objections to the election and
the Regional Director for Region 16 issued a report rec-
ommending dismissal of the objections. On June 19,
1979, the Board issued its Decision of Certification of
Representative overruling the objections to the election. 2
Complaint issued against Respondent in Case 16-CA-
8628, alleging that Respondent has failed and refused to
bargain in good faith with the Union in the unit herein
involved. At the time of the instant hearing, that case
was pending before the Board on the General Counsel's
Motion for Summary Judgment."
i Pursuant to Rule 2(11 ,r the rFederal Rules of E'idence. I am tliking
judicial notice of Ihe Board'\ Decision upon m)y i)11 mioiion
2 242 NLRH No 181
: Respondenl moved for consolidation of the proceedings iln Case 16i
CA 8628 With Ihe illslanl proceedillgs Prior to the inn le hearilng. Ihe
Deputy Chief Adminiltrall ae [. Judge denied said milltilll
The General Counsel contends that since 1974, Re-
spondent has maintained a policy of granting wage in-
creases to its driver and warehouse employees each
April Respondent argues that the evidence fails to show
that it had any such past practice
In support of his case, the General Counsel offered the
testimony of two employees from Respondent's Arling-
ton facility. Driver Donald Mahaffey testified that he has
worked for Respondent over II years and has received a
wage increase each April ending with April 1978. 4 Ma-
haffey did not receive a wage increase in 1979. Accord-
ing to the uncontradicted testimony of Mahaffey, which
I credit, he asked Kenneth Schultz. Respondent's ware-
house manager, if Schultz knew anything about the wage
increases and Schultz answered that he did not. Mahaffey
subsequently, on behalf of the employees, sent a letter to
A. A. Stambaugh, Respondent's executive vice president
in Massachusetts, which, inter aliu, charged that Re-
spondent had withheld annual pay increases from em-
ployees because they had voted for representation by the
Union. On August 7, 1979. Stambaugh wrote Mahaffey
stating that these matters were the subject of proceedings
pending before the Board and could not be commented
on. Respondent did not call Schultz. Stambaugh, or any
other witness to testify.
Warehousemen Terry Lee Miller testified. without
contradiction, that when he was hired in the spring of
1978, he was told by Schultz that he would receive a
raise at the end of 90 days and a raise once every year in
April.- According to Miller, whose testimony I credit,
Schultz stated that the reason for giving raises once a
year was to preclude employees from "bugging manage-
ment" about their raises. Thus, Schultz told Miller that,
rather than give raises on an irregular basis, Respondent
had a policy of giving raises once a year, in April.
In December 1978. Miller questioned Schultz about his
forthcoming April raise and was told that "since you all
chose to go the way you did, it has been taken out of my
hands." At the end of April 1979, Miller again asked
Schultz about his raise and was told "we both know
what happened to your raise." On two other occasions
Schultz, in answer to Miller's questions about the raise,
simply stated that he could not discuss the matter. Miller
received a raise in 1978, after he had worked for Re-
spondent some 120 days but did not receive a raise in
April 1979.
Aside from the "90-day raise" granted Miller in 1978,
no employee of Respondent received a raise after April
1978. On July 3, Michael Kline, union business repre-
sentative. wrote Respondent's vice president of employee
' Fhe parties slipulalcd that Mahaffel began hi, empllmentl s.ilh Re-
spolldellt in April 1968, ianid recci .1ed i .lagc Iticreate Cah April Ihereaf-
Icr until calendar year 1975 Iii its poi .-lrlal briefr Rtespodeilt l ntenllli
that M;h;,afrey' r;,ises ,,la, have beeh due to the illtnlers.lr l date of this
eniploymenlt riather than dule to i aii Lmpaisy polic There Is no exs-
deice it) support such coilenCIllont
; Responldent argues ill itl po-tri l brief Ihalia Ihe promise if aii April
sWage increase to Miller. mla, ia uli heltl bacd l thl e a lllllersiar dalr of
his emnploymenl rather Ihalli on i policr of planllt ide ra;lses In April
tlased on the entire reclord. nd p.iricllrl Ihr t e admlsolll made hy
Schull. , such a.rgun lenl is ril cleed
493
I)4'ISI)()NS ()F NAI I()NA I ABO()R REI.ATI()NS It()ARI)
relations and requested that Respondent grant the wage
increases pursuant to past policy.
I find that the record establishes that Respondent had
a past practice of granting its drivers and warehousemen.
at the Arlington facility, a wage increase each April.
IV. CON(I USIONS
It is undisputed that an employer may not withhold
wages or benefits in order to influence employees during
the post-election period, prior to certification of the bar-
gaining representaive. Wells Fargo Alarm Services, 224
NLRB 1111 (1976); Modesto Convalescent Hospital, 235
NLRB 1059 (1978); Liberty Nursing Homes, Inc., 236
NLRB 456 (1978); St. Elizabeth Community Ilo.pital, 240
NLRB 937 (1979). In such circumstances, the employer's
legal duty is to proceed as he would have done had the
Union not been on the scene. See The Catholic Medical
Center of Brooklyn and Queens, Inc., et al., 236 NLRB
497 (1978); Stumf Motor Company, Inc., 208 NLRB 431,
433 (1974).;
In the instant case I have found that Respondent with-
held wage increases from its driver and warehouse em-
ployees who had chosen the Union as their bargaining
representative under circumstances where the employees
otherwise would have been granted the raises under Re-
spondent's established business practice.
Respondent, in its brief in support of its motion for
consolidation, contends that it was faced with a "Catch-
22" situation; grant a unilateral wage increase and be
held in violation of Section 8(a)(5) and (1) 7 or refuse to
grant the increase and be held in violation of Section
8(a)(3) and (1). Respondent argues that the only alterna-
tive to this legal dilemma would be to bargain with the
Union over the increase. Respondent further argues that
to do so would require it to give up its right to test the
Board's certification of June 19, 1979.
This argument is laden with fallacies. In April, when
the raises were due, the Union had not yet been certified,
Respondent was only prevented from taking actions
which would constitute a "change" from past practice.
Contrary to its assertions, Respondent was at liberty to
follow its past practice during the campaign (until certifi-
cation issued). Under Wells Fargo, supra, there would
have been no violation for Respondent to grant the wage
increase, during the campaign. Nor would Respondent
have violated Section 8(a)(5) and (1) under Allis Cham-
bers. supra, as the election results were still pending and
the Union had not yet been certified as the exclusive bar-
gaining representative. Moreover, after the certification
issued the Union requested that Respondent grant the
wage increases. Again, Respondent could have granted
the wage increases without violating the Act. Finally, it
should be noted, Respondent's "right" to test the certifi-
cation is in actuality a refusal to bargain in order to
n Though there are certain exceptiols to this rule, Ihey are not applica-
ble in the instarlt case See Curter L uhorloril,. 1,l,.. 221 Nl RB 161
(1975)
7 ReCpondenl cites ..I/Hi (Ch,,lber Corporu/ran, 237 NtI.Rt 291) (1978);
Winn-Dixie Slorn;, Inc.. 243 NLI.R1 No 151 (1979): and .alron Broth'rn
Company. 245 NLRB No. S (1979), for Ilis proposition These cases il-
vollve unilalteral challges nmladc pursilalt to past practices withoul hargaill-
Ing with the exclusive bargaining represcnltlive. I do not hbelicse they
stand foir the propositi, four "hichl they %Vere cited by Respoldent.
obtain review by a United States Court of Appeals.
Thus, Respondent tested the certification at the risk of
being held in violation of Section 8(a)(5) and (1). There
is no "right" to delay bargaining until the certification
has been enforced by the courts. Respondent, even after
issuance of the certification, would not have increased its
liability, under the Act, by following its past practice of
granting wage increases. The legality of the wage in-
crease would raise or fall upon the court's enforcement
or denial of enforcement of the refusal to bargain case
testing the certification.
Under the circumstances of this case, I find Respond-
ent violated Section 8(a)(3) and (1) of the Act by with-
holding the April 1979 wage increases from its driver
and warehouse employees who had chosen the Union as
their representative under circumstances where the em-
ployees otherwise would have been granted the raises
under Respondent's usual business practice. This finding
is buttressed by the admissions made by Warehouse Man-
ager Schultz that "since you all chose to go the way you
did, it has been taken out of my hands" and "we
know what happened to your raises." The only conclu-
sion to be drawn, from the withholding of the wage in-
creases and Schultz' statements, is that Respondent in-
tended to punish its employees because they voted for
the Union.
V. '1111HE REMl I)
having found that Respondent has engaged in certain
unfair labor practices, 1 shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Therefore,
it is recommended that Respondent increase the wage
rates of its drivers and warehousemen employed in its
Arlington, Texas, distribution center retroactive to April
1979, with interest thereto to be computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
CONCLUSIONS OI1 LAW
I. Respondent is 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. By failing to grant or by withholding the April 1979
wage increases to its drivers and warehousemen em-
ployed in its Arlington, Texas, distribution center, which
increases would otherwise have been granted pursuant to
Respondent's normal business practice, Respondent inter-
fered with its employees in the exercise of rights guaran-
teed in Section 7 of the Act, and discouraged member-
ship in a labor organization, in violation of Section
8(a)( ) and (3) of the Act.
4. The unfair labor practices found above are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
494
H()OWARI) JOHNSON DISTRIFUTI()N CENIER
Upon the basis of the fioregoing findings of fact, con-
clusions of laxw, and the entire record, m and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER!'
The Respondent, Howard Johnson Company d/h/a
Howard Johnson Distribution Center, Arlington, Texas,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to grant and withholding the wage in-
creases to its drivers and warehousemen employed in its
Arlington, Texas, distribution center, which increases
said employees would otherwise have been granted in
April 1979, pursuant to Respondent's past business prac-
tice.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights granted to them by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
" Respondent's unopposed motion to correct the transcript is hereby
granted and added to the record as GC. Exh. 6.
9 All outstanding motions inconsistent with this recommended Order
hereby are denied 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.
(a) Forthwith adjust and pay retroactively the wage
rates of the drivers and warehousemen employed at the
facility involved herein, by conforming such rates to
those which would have otherwise been put in effect in
April 1979, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying. all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this recommended Order.
(c) Post at its place of business in Alington, Texas,
copies of the attached notice marked "Appendix. " ' °
Copies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
i' In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
495