J. Huizinga Cartage Co., Inc. And Simpson Motor Transportation, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 965 (N.L.R.B. 1990)

J. HUIZINGA CARTAGE CO.
J. Huizinga Cartage Co ., Inc. and Simpson Motor
Transportation, Inc., Single Employer and/or
Joint Employers and Floyd Richardson and
David Toles and Leonard Atkins. Cases 13-
CA-26223, 13-CA-26255, and 13-CA-26274
June 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On November 15, 1989, Administrative Law
Judge Walter J. Alprin issued the attached deci-
sion . The Respondent filed exceptions, and the
General Counsel filed exceptions and a supporting
brief. The General Counsel filed an answer to the
Respondent's exceptions and a motion to strike the
Respondent's exceptions.' The Respondent then
filed a response to the General Counsel's motion to
strike.
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, fmdings,2 and
conclusions3 as modified and to adopt the recom-
mended Order as modified and set forth in full
below.4
i The General Counsel argues that the Respondent 's exceptions must
be disregarded as they fail to comply with Sec 102 46(b)(1) of the
Board's Rules and Regulations We have examined the Respondent's ex-
ceptions and find that although they do not comply with Sec
10246(b)(1) in all respects, the Respondent 's exceptions do substantially
conform to the Board's procedural rules. Accordingly, we deny the Gen-
eral Counsel 's motion to strike the Respondent 's exceptions.
2 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance 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
3 We shall amend par 2 of the judge's conclusions of law to correct an
error We shall also amend par. 5 to reflect that there is no evidence that
the Respondent threatened Atkins with job loss if he failed to sign the
subcontractor's affidavits , but that there is evidence that the Respondent
threatened to withhold Atkins' paycheck until he signed the affidavits
4 The General Counsel contends that the discriminatees' backpay
should be computed on the basis of wage rates and other benefits provid-
ed for in the collective-bargaining agreements of Locals 710 and 705. We
find that this remedy is warranted. The complaint alleged that the discri-
minatees should have been included in the contractual bargaining units
and the collective-bargaining agreements should have been applied to
them On the basis of the evidence adduced at the hearing concerning the
job duties of the discrimmatees , we find that their positions fall within the
descriptions of the bargaining units set forth in the parties' collective-bar-
gaining agreements We therefore find that the General Counsel has
made a prima facie showing, which the Respondent has not rebutted, that
the work performed by the discrimmatees was bargaining unit work and
that, had the Respondent not unlawfully discharged them for seeking bar-
gaining unit status, their employment should have continued under the
rates set by the collective -bargaining agreements . We do not, however,
agree with the General Counsel that any of the discriminatees are entitled
to backpay based on such rates for any period prior to their discharges
965
Amended Conclusions of Law
1. Substitute the following for paragraph 2.
"2. Teamsters Locals 710 and 705 are labor orga-
nizations within the meaning of Section 2(5) of the
Act."
2. Substitute the following for paragraph 5.
"5. By directing its employees Floyd Richardson
and David Toles on or about August 29 to sign
subcontractor's affidavits on pain of not being al-
lowed to work , the Respondent violated Section
8(a)(1) and (3) of the Act."
3. Insert the following as paragraph 6 and re-
number the subsequent paragraph.
"6. By directing its employee Leonard Atkins
about August 29 to sign subcontractor 's affidavits
on pain of Atkins not receiving his paycheck, the
Respondent violated Section 8(a)(1) and (3) of the
Act."
ORDER
The National Labor Relations Board orders that
the Respondent, J. Huizinga Cartage Co., Inc. and
Simpson Motor Transportation, Inc., single em-
ployer and/or joint employers, Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Terminating, laying off, or otherwise dis-
criminating against employees because of their
union activities.,
(b) Terminating, laying off, or otherwise dis-
criminating against employees because of their con-
certed activities.
(c) Threatening employees with discharge be-
cause of their union activities and interests.
(d) Coercing employees to sign subcontractor's
affidavits because of their union or other concerted
activities.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer to Floyd Richardson and David Toles
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
Although the complaint alleged that the Respondent discriminated
against employees Toles, Atkins, and Richardson by refusing to pay them
according to the terms of the collective -bargaining agreements because
they were not union members , the judge made no conclusions of law
concerning that allegation, and the General Counsel had not excepted to
his failure to do so. Because the backpay remedy properly flows from the
violation found, we conclude that the discriminatees' backpay should be
computed from the date of discharge in accordance with the terms of the
collective-bargaining agreements
298 NLRB No. 145
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
seniority or any other rights and privileges previ-
ously enjoyed , and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them , in the manner set
forth in the remedy section of the judge 's decision
as modified.
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(c) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Chicago , Illinois terminal , copies
of the attached notice marked "Appendix."5
Copies of the notice , on forms provided by the Re-
gional Director for Region 13, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 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 Nation-
al 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 "
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for engaging in union ac-
tivity protected under the Act.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for engaging in concerted
activity protected under the Act.
WE WILL NOT threaten you with discharge be-
cause of your union activity.
WE WILL NOT coerce you to sign subcontractor's
affidavits because of your union or concerted activ-
ity.
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.
WE WILL offer Floyd Richardson and David
Toles immediate and full reinstatement to their
former jobs or, if their jobs no longer exist, to sub-
stantially equivalent positions without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge , less any net interim earnings,
plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to their dis-
charge and that the discharges will not be used
against them in any way.
J. HUIZINGA CARTAGE CO., INC. AND
SIMPSON MOTOR TRANSPORTATION,
INC., SINGLE EMPLOYER AND/OR
JOINT EMPLOYERS
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.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
Allan Hellman, Esq., for the General Counsel.
Richard E. Gordon Esq. (Gordon & Gordon), of Chicago,
Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALTER J . ALPRIN, Administrative Law Judge. Pur-
suant to charges filed on August 26, November 28, and
September 15, 1986, and an amended charge in Case 13-
CA-26223 filed on November 26 by Floyd Richardson,
David Toles, and Leonard Atkins, an amended consoli-
dated complaint and notice of hearing was issued on Jan-
uary 23, 1987 , by Region 13 of the National Labor Rela-
tions Board . The complaint alleged that Respondent (1)
had violated Section 8(a)(1) of the Act on or about
August 15 by threatening an employee with layoff and
discharge if he joined the Union and (2) had violated
Section 8(a)(1) and (3) of the Act by discharging the
three Charging Parties on or about August 29.
J. HUIZINGA CARTAGE CO.
Respondent filed an answer in which it denied the ma-
terial allegations of the complaint. The case was heard
by me on May 13 and 14, 1987, in Chicago, Illinois. Both
the General Counsel' and the Respondent submitted
briefs which have been carefully considered.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges and Respondent's answer admits
that J. Huizinga Cartage Co., Inc. and Simpson Motor
Transportation, Inc. are Illinois corporations with offices
and places of business located in Chicago, Illinois. They
have been engaged in the interstate and intrastate trans-
portation of freight. At all times material to this case,
Hulzinga and Simpson have been affiliated business en-
terprises with common ownership, officers, directors,
management, and supervision. They have formulated and
administered a common labor policy affecting their em-
ployees. They have held themselves out to the public as
a single integrated business enterprise. They constitute a
single integrated business enterprise and a single employ-
er within the meaning of the Act. At all times material to
this case, Huizinga and Simpson have been joint employ-
ers of the employees of Respondent.
During the 12-month period ending October 7 Re-
spondent, in the course and conduct of its operations,
provided services from its Chicago, Illinois facility,
valued in excess of $50,000 to enterprises located outside
the State of Illinois. During that same period of time, in
the course and conduct of its business operations Re-
spondent provided services valued in excess of $50,000
to enterprises located within the State of Illinois, each of
which enterprises met the Board's jurisdictional stand-
ards on a basis other than indirect outflow or indirect
inflow.
I find that Respondent, at all times material, was an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
General Counsel alleged, Respondent admitted in its
answer, and I find that Local Union No. 710 of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Local 710) is
and at all times material has been a labor organization
within the meaning of Section 2(5) of the Act.
General Counsel alleged, Respondent admitted in its
answer, and I find that Truck Drivers, Oil Drivers, Fill-
ing Station and Platform Worker's Union Local No. 705,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Local 705) is and has been at all times material a labor
organization within the meaning of Section 2(5) of the
Act.
' Counsel for the General Counsel will henceforth be designated as
General Counsel
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
967
1. Background
Huizinga Cartage is engaged in the cartage of freight
for other businesses. Huizinga has been in existence for
52 years. Its president is John Huizinga Sr. The events in
this case revolve around its terminal at 2526 West 26th
Street, Chicago, Illinois. This terminal will be designated
hereinafter as the Chicago terminal.
Huizinga's drivers are either unionized, or are inde-
pendent brokers who own their own vehicles and pay all
attendant costs and expenses, or drivers employed by in-
dependent brokers, or, like the three Charging Parties,
are directly nonunion, employed by Huizinga on an
hourly basis, with Huizinga assuming all costs and ex-
penses attributable. Huizinga gratuitously considers and
treats these nonunionized and nonbroker drivers as "in-
dependent contractors" solely on its own decision not to
withhold taxes from earnings.
There are two bargaining units for Huizinga employ-
ees. These employees are represented by Local 705 and
710 of the Teamsters. Local 705 covers cartage of regu-
lar freight to customers located in the Chicago area and
its environs. Local 710 has jurisdiction over the transpor-
tation of meat products in the same geographic area.
Drivers hold membership in one local or the other but
may interchange depending on work demands and sea-
sonal factors.
The Employer deducts the appropriate dues from its
unionized employees' wages. Unionized employees are
paid in accord with the terms of the respective collec-
tive-bargaining agreements. Both organizations associated
as a "single employer"-Huizinga and Simmons-use the
services of a number of other nonunionized drivers who
are not covered by either contract and, who, as a result,
do not share in the benefits conferred by those contracts.
These' anomalous labor arrangements created a suffi-
cient condition for the alleged unfair practices in this
case. These practices, as alleged in General Counsel's
complaint, are as follows:
(1) On or about August 13, Respondent, acting
through its agent John Huizinga Jr., threatened an em-
ployee with layoff and discharge in violation of Section
8(a)(1) if he joined the Union.
(2) On or about August 29, Respondent discharged
nonunion employees Richardson, Toles, and Atkins (the
Charging Parties). These discharges allegedly occurred
because the three individuals (a) had filed charges with
the Illinois State Department of Human Rights; (b) Rich-
ardson, Toles, and Atkins had refused to complete sub-
contractors' affidavits given them by Respondent; (c)
Richardson, Toles, and Atkins had joined, supported, or
assisted a union or Respondent believed that they had;
and (d) the three employees had engaged in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.
Such actions and the purposes of Respondent in taking
them are alleged to violate Section 8(a)(1) and/or (3) of
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Act, depending upon the ultimate factual findings in
the case.
2. The activities of the Charging Parties and their
separation from Respondent 's employ
Floyd Richardson, David Toles, and Leonard Atkins
(the Charging Parties) were among that group of Re-
spondent's drivers to whom the terms and conditions of
employment accorded union members of Locals 710 and
705 did not apply. The Charging Parties wished to join a
union and obtain the benefits of membership at their
place of employment directly led to the events described
here.
Charging Party Richardson was hired in 1983. His
basic job assignment was hauling material from Lever
Brothers in Hammond , Indiana, to the railyards in Chica-
go. He normally worked 40 to 50 hours per week.
Richardson's testimony was that his interest in joining
a union manifested itself on the day he was hired ; that he
mentioned a union withdrawal card he had obtained
from a former job; and that John Huizinga Sr. replied
that he did not have nor did he want a union at Huizinga
Cartage. Richardson only learned later that some em-
ployees were organized. He testified that he then ap-
proached Huizinga Jr. and told him he would like to join
the membership because he needed the medical benefits,
in particular, because of his school age children. Hui-
zinger Jr. allegedly told Richardson he would be dis-
charged by Huizinga Sr. if he joined the Union. Richard-
son testified that a number of conversations to this effect
occurred in following years. "Would say it mostly every
conversation that I would get into it with him about ben-
efits and the Union. John Jr. would say that." These ad-
ditional conversations, Richardson testified, were wit-
nessed "by the secretary inside the office and outside the
office, Thomas, and Spencer."2
Richardson went with the other two Charging Parties,
Toles and Atkins, to Local 705 offices on August 14.
Prior to this visit , the three Charging Parties had met
with several other employees to discuss the advantages
of union membership and their grievances.3 Following
this meeting, the Charging Parties proceeded to the
Local 705 union hall in Toles' car. Richardson went into
the hall by himself where he signed a dues authorization
card. After Richardson came out, Atkins went in. Upon
the latter's return to the car, the three proceeded to the
Illinois Department of Human Rights. Richardson and
Atkins filed a discrimination charge with this organiza-
tion.
2 This testimony appears in a supplemental stipulation of fact presented
jointly by General Counsel and Respondent 's attorney on August 14,
1987 Both Counsel joined in a motion to amend the record of this pro-
ceeding in accord with the supplemental stipulation The stipulation con-
cerns only testimony of Richardson which was inadvertently omitted
from the record I grant the motion for leave to amend record of pro-
ceedings and the supplemental stipulation is made a part of the record
3 Richardson betrayed some doubt as to whether this meeting occurred
before or after the union hall trip He was sure it occurred prior to his
leaving Huizinga The only person beside the Charging Parties ,present
was an employee named Spencer Giving due weight to the probabilities,
I find it more likely that the discussion occurred prior to the trip to the
union hall.
A few days later, Richardson showed his signed union
authorization card to Huizinga Jr. About a week later,
he saw an envelope from the Illinois Department of
Human Rights on Huizinga Sr.'s desk. Richardson testi-
fied that he heard Huizinga Sr. say that "That son-of-a-
bitch filed a nigger charge on me." Subsequently, but
still in August, Huizinga Jr. allegedly warned Richard-
son that Huizinga Sr. was planning to get rid of him.
On August 22, instead of his regular check from Hui-
zinga Cartage, Richardson received a check from the re-
lated company Simpson . He received another such check
a week later on August 29. Between these two checks,
Richardson was handed some papers. They were (1) an
employment application form and (2) a subcontractor's
affidavit.4 Richardson was told by Huizinga Jr. that he
could not work without filling out and signing these
papers.
The first week in September, Richardson again report-
ed to Respondent to see if there was work available.
There he was told by Huizinga Jr. that he was a
"broker," i.e., an independent contractor. Richardson
had never heard this prior to this time. He was again
asked for the papers-the employment application and
subcontractor certificate-he had been asked in August
to complete and sign. Huizinga Jr. told him he could not
work without them. This scenario was repeated several
more times in September. Richardson was never again
offered work by Respondent.
Charging Party Leonard Atkins was hired in 1984.
Atkins hauled soap and related items from the Ham-
mond, Indiana Lever plant. Atkins did not develop any
interest in the Union until he learned of it and the poten-
tial benefits available from other employees. Atkins went
with Toles and Richardson on August 14 to the union
hall. When Atkins went into the hall by himself he spoke
with a man (unidentified) who stated he had already
talked with another Huizinga employee and did not wish
to become involved. He would not let Atkins sign a
membership card and referred him to a person named
"Coco," presumably another union representative. The
unidentified individual then told Atkins to leave.
Atkins accompanied Toles and Richardson and filed
charges with the Illinois Department of Human Rights.
Atkins charged that he had been denied certain benefits
granted other Huizinga employees and that he had been
threatened with discharge in connection with his union
interests . Atkins, a black man, attributed these actions to
racial discrimination.
The week following these events Atkins was, for the
first time, paid by a check drawn on Simpson Transpor-
tation. All his previous paychecks had come from Hui-
zinga Cartage. When Atkins asked the reason, for the
change, Huizinga Jr. simply told him only that "This is
going to be your new check from now on."
Three days later-on August 25-Huizinga Jr. gave
Atkins several documents to fill out and return. These
were (1) an employment application form 'and (2) a sub-
contractor's affidavit. Although Atkins demanded to
"The latter was deigned to impute independent contractor status to the
person filling out and signing it
J. HUIZINGA CARTAGE CO. 969
know the purpose of the documents, Huizinga Jr. gave
him no explanation but several times repeated that they
must be signed and returned. Atkins took the documents
and went on to work.
Atkins did not fill out these papers. The rest of the
week he was interrogated about their status. Finally, on
Friday (August 29) Huizinga Jr. told him that his check
would be withheld until the documents were completed.
Atkins retrieved the documents from his home, brought
them back to the terminal but announced he would not
sign them. Atkins denied that he was a broker, saying "I
don't own no truck or nothing like that." When Hui-
zinga Jr. took the blank documents from Atkins and
gave him his paycheck, Atkins asked Huizinga Jr. if he
still had a job but Huizinga gave no direct answer, in-
stead, he instructed Atkins to call in rather than report
for work, and Atkins then left.
Atkins called the terminal seeking work for each of
the next 3 days. Huizinga Jr. told him on each occasion
that there was no work. After these 3 days, Atkins
stopped calling. He heard nothing from Huizinga Jr. and
never worked there again.
Charging Party Toles was hired by Huizinga Cartage
in March 1984. He too hauled soap products from Lever
Brothers in Hammond, Indiana, to Chicago. His supervi-
sors were the two Huizingas. Toles contacted the Union
(Local 705) as early as July 1985. On signing a dues au-
thorization card, Toles took it to Huizinga Jr. who told
him to go home. Huizinga allegedly commented that
Toles had done "a stupid thing" by going to Local 705
because he would be discharged by Huizinger Sr. Short-
ly after these events, Toles received a telephone call
from Huizinga Sr. who said he "wanted to work things
out." He requested Toles to return to work and Toles
did. About a year later-again in July-Toles filed a
charge with the Illinois Department of Human Rights,
alleging that the Employer had denied him the benefits
of union membership. Toles, a black, attributed the Em-
ployer's action in regard to union membership and bene-
fits to racial discrimination.
Not long after filing the above charge, Toles was
transferred to the Simpson payroll. He was not told di-
rectly of the transfer but noticed it when he received his
first Simpson check. Toles was also given the blank em-
ployment application and subcontractor's affidavit to
complete. The affidavit purported that the signatory was
a "subcontractor" who assumed -the responsibility for
paying his own taxes (rather than having them withheld)
and his own health and liability insurance.
After discussing these documents with several other
employees-including Richardson and Atkins-Toles
elected, not to complete and sign them. He did not work
for Respondent past August 26. He did talk on the tele-
phone "approximately about four or five times" with
Huizinga Jr. to ask if there was any work available. Each
time Huizinga Jr. told him not to report as there was "no
work." After a week of these conversations, Toles went
down to the terminal with Floyd Richardson on Septem-
ber 2 There they spoke with Huizinger Jr. who reiterat-
ed that there was no work available. Huizinger also told
the employees that if they did not sign the subcontractor
affidavit they "just [couldn't] work there no mare."
Toles never worked at the terminal again nor did he
ever hear from the Huizingas following the September 2
conversation.
3. General Counsel's prima facie case
I credit the above testimony of Toles, Atkins, and
Richardson. Beside their credible bearing at this portion
of the hearing, I note that their testimony is sustained by
several critical pieces of documentary evidence such as
the union authorization card signed by Toles in 1985; the
Department of Human Rights charge by Toles; the au-
thorization cards signed by Richardson; the Human
Rights charge filed by Richardson; and a similar charge
filed by Atkins. I note, with reference to Richardson, the
fact that Huizinga Jr. threatened several times in August
that Richardson would be discharged by Iuizinga Sr.
because of his activities in seeking union representation.
As soon as it became aware of the employee's, attempt
to join the Union and the charges filed when that at-
tempt was frustrated, the Employer sought to camou-
flage its desires by means of a transfer to Simpson Trans-
portation with independent contractor status. Such an at-
tempt is unlawful. Vulcan-Hart Corp.,, 262 NLRB 167,
168 (1982); Blue Cab Co., 156 NLRB 489, 491 (1965).
That the employees refused to complete, sign, and
submit the affidavits required by the Employer to imple-
ment its discriminatory scheme was not a proper ground
for discharge or refusal to assign them work until the af-
fidavits were submitted. The employee's refusal to submit
the affidavits, done in tandem, constituted protected con-
certed activity within the ambit of Section 7 of the Act.
See NLRB v. City Disposal Systems, 465 U.S. 822, 830-
831 (1984):
The term "concerted activit[y]" is not defined in
the Act but it clearly enough embraces the activities
of employees who have joined together in order to
achieve common goals. See, e.g., Meyers Industries,
Inc., 268 NLRB No. 73 at 3 (1984). . . .
Although one could interpret the phrase "to
engage in concerted activities," to refer to a situa-
tion in which two or more employees are working
together at the same time and' the same place
toward a common goal, the language of § 7 does
not confine itself to such a narrow meaning. In fact,
§ 7 itself defines both joining and assisting labor or-
ganizations-activities in which a single employee
can engage-as concerted activities.
These remarks of the U.S. Supreme Court make clear
in the instant case that the Charging Parties, by virtue of
their attempts to join Local 705, were engaged in Sec-
tion 7 activities regardless of whether, as I have found,
they were engaged in a mutually cooperative enterprise.
4. Respondent's defense
I have found in section 3, supra, that the General
Counsel has established that Section 7 protected activity
was a motivating factor in Respondent's treatment of the
Charging Parties. I turn now to Respondent's defense.
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board has stated in Wright Line, 251 NLRB 1083,
1089 (1980):
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a motivating
factor in the employer's decision. Once this is estab-
lished, the burden will shift to the employer to dem-
onstrate that the same action would have taken
place even in the absence of the protected conduct.
The Board's test is derived from the discussion of the
United States Supreme Court in Mt. Healthy Board of
Education v. Doyle, 429 U.S. 274 (1977).
Respondent asserts several defenses of general applica-
tion and one that applies solely to Charging Party
Atkins. These are as follows:
(a) Respondent asserts that all its nonunion drivers
were "treated as subcontractors from their inception."
The attempt to have Charging Parties file a subcontrac-
tor's affidavit following close on to their 1986 attempt to
join Local 705 and the filing of the Human Rights
charges is said to be an attempt "to place into writing
the understandings between the Company and their non-
union employees." The problem with this assertion is
that there does not seem to have been any such "under-
standing" when the Charging Parties were hired. Thus,
Toles denied on cross-examination that he was hired as
an independent contractor. The document which Toles
filled out when he went to work for Huizinga Cartage is
labeled "EMPLOYMENT APPLICATION" and says
nothing to indicate independent contractor status. It ap-
pears on its face to be a standard job application form
used by Respondent.5 Richardson denied being hired'as
an independent contractor although he admitted that
taxes were not withheld from his paycheck. His employ-
ment application likewise says nothing concerning inde-
pendent contractor status.6 The allegation that these em-
ployees were "subcontractors," "independent contrac-
tors," or "brokers" of Huizinga is as spurious as the
claim that they would be such for Simpson.
(b) Respondent called as witnesses a number of its cur-
rent drivers. These were: Leonard Hansen, DeForest
Taylor, Bobby Vinton, T. J. McBride, Steve Morgan,
Patrick Daily, Terry Easton, Ollie Glover, and Joseph
Boroczk. Their testimony is that these individuals have
worked with Huizinga anywhere from 1-1/2 to 34 years.
5 Toles testified erroneously about his employment immediately prior
to coming to work for Hutzinga Cartage and, possibly, the date of his
initial employment Some of this confusion may have arisen from the fact
that DeForest, who Toles indicated owned a truck and for whom he
drove, had the truck leased to Huizinga Cartage Deforest was said by
Toles to be his employer immediately prior to working for Huizinga
6 I do not find that Charging Parties were independent contractors at
any time Whatever way their taxes and social security payments were
arranged, the facts are that they did not own their trucks, specific truck
runs were made on Respondent's orders, and they did not possess such
control over the manner and method of performing their duties as would
remove them from the class of employees See Tr 68-72, 99-100, 128-
131; and 187-188 While I make no finding as to whether some individ-
uals at Huizinga Cartage may have been independent contractors, I do
find that the Charging Parties were not That they may have been so in
prior employment situations (as Respondent sought to show) is not con-
trolling (possibly not even relevant) as regards Huizinga See Am-Del-Co,
225 NLRB 698, 706-707 (1976)
They testified generally that the Charging Parties never
discussed the Union with them ; that no member of Re-
spondent 's management had ever threatened them or dis-
couraged them about joining a union (indeed , one driver,
Leonard Hansen testified that Huizinga Sr. recommend-
ed he join the Union when he started his employment 11
years' prior the hearing); those who had talked to the
Charging Parties denied that the latter had ever claimed
to be discriminated against; another driver, Ollie Glover,
testified that when he returned to Huizinga in 1979 he
talked with Huizinga Sr. and the latter did not object to
anyone joining a union . He further testified that he could
talk to both Huizingas "anytime about anything." Two
individuals identified only as "Wilburt " and "Spencer" as
to whom both Toles and Richardson testified that they
talked to Toles about the subcontractor 's affidavit and
Richardson at a meeting in a park in August did not tes-
tify. While I draw no inference against Respondent be-
cause of that fact, it does not appear that any Charging
Party claimed to have discussed the Union and related
matters with any of the driver witnesses Respondent
called . Under all the circumstances, I am unable to give
this driver testimony presented by Respondent any par-
ticular weight even if credited.
(c) Respondent claimed that Toles and Richardson
were laid off toward the end of August because of busi-
ness reverses. These reverses allegedly included loss of
business from two large accounts-Lever Brothers and
Libby-McNeill . In my judgment , this claim must be re-
jected for a number of reasons . First, there is evidence
that the drop in business started well before Richardson
and Toles were taken off work. Huizinga Jr. testified
that Respondent had been losing out on Lever Brothers
all during 1986.
A gradual decline in available business opportunities
can, of course, continue for a period before it reaches the
catastrophic stage where employees must be laid off and
trucks mothballed. The employer must be left to exercise
his business judgment as to when that catastrophic
moment has arrived . One might also defer to that judg-
ment when it concerns the measures necessary to protect
the business in an adverse economic climate. Respondent
has, however, failed to bring forth the factual basis for
its alleged exercise of business judgment in this case.
Huizinga Jr. and Lois Simosky testified about a loss of
business in the Lever Brothers and Libby -McNeil ac-
counts. No business records hearing on the alleged loss,
its size, or the percentage of Respondent 's total business
represented by these two accounts were submitted. Such
records would have given a continuing quantitative pic-
ture of Respondent's economic situation during 1986' and
permitted the factfinder to properly evaluate Respond-
ent's claim that the treatment of the Charging Parties' in
August was a proper exercise of business judgment. Fail-
ure of a party to produce evidence in its control justifies
an inference that such evidence, if produced , would be
unfavorable to it. See Pipeline Local 38 ' (Hancock-North-
west, J. V.), 247 NLRB 1250 (1980); and St. Regis Paper
Co., 247 NLRB 745 (1980). The failure ^ to produce such
evidence is particularly relevant where, under Wright
Line, a respondent is charged ' to demonstrate that it
J. HUIZINGA CARTAGE CO. 971
would have taken the same action regardless of employ-
ees' union or concerted activities.7
(d) Respondents claimed that drivers other than the
Charging Parties in this case were told not to report for
work. Simosky testified at one point that she maintained
a list of these which included two of the Charging Par-
ties . The list was allegedly maintained so that some of
these could be called back in the event work became
available. However, prior to this, under cross-examina-
tion she had been unable to name any driver other than
the Charging Parties who had been told not to report to
work because of the alleged business slowdown. While
the matter is not free from doubt, I note that, again, no
business records were produced on this point nor was
the list Simosky allegedly maintained produced. Under
these circumstances, I am unable to find that any drivers,
other than the Charging Parties lost work. St. Regis
Paper Co., supra.
Even if that were the case however I am unable to
credit Simosky's and Huizinga Jr.'s testimony that Rich-
ardson and Toles were kept on such a list and a number
of unsuccessful attempts made to contact them for work.
Both Toles and Richardson made several attempts to
return to work including a September 2 visit to the ter-
minal. In each instance they were told that there was
"no work." On some occasions, the "no work" answer
was accompanied by a further inquiry about filling out
the subcontractor's affidavit. I therefore do not find that
Respondent had the intent to recall the Charging Parties
nor do I find that any effort in that direction was made.
(e) Respondent asserts that the Board ought not to
take cognizance of their case because it involves a racial
charge filed with the Illinois Department of Human
Rights. Whatever the merits of this claim had the racial
aspects been the sole consideration in the case, the evi-
dence makes clear that the Charging Parties thought, at
one time, that their efforts to join Local 705 were being
frustrated by the Employer on racial grounds. I make no
determination as to the truth of that belief, but I note
that they filed those charges in cooperation with one an-
other. Even if,'which I do not find, the charges involved
nothing but racial discrimination which, per se, the
Board would have no authority substantively to handle,
the filing of them involved working conditions and was
done on a mutually cooperative basis. Accordingly, the
Board would have authority to handle the concerted ac-
tivity aspects of the matter. Cf. Meyers Industries, 268
NLRB 493 (1984). In any event, the charges involved
Respondent's reaction to Charging Parties attempts to
join Local 705. General Counsel tried the case, in part,
on Respondent's reaction to the attempted joining of the
Union and I have found that Respondent's treatment of
these individual's was bottomed, at least in part, on the
traditional union activity aspects of the case. That
7 There is evidence that Respondent hired additional drivers following
the refusal to give Charging Parties any work. While it is not clear just
when these individuals were hired, it is clear that Toles and Richardson
were not brought back-as presumably they would have been if business
improved-and others were hired in their place. I do not credit Respond-
ent's claim that Toles and Richardson had to work at night I find that
night work was what was available when they came to work and they
accommodated themselves to that necessity
Charging Parties may have, at some point, legally misap-
prehended the cause of their predicament will not serve
as a reason to dismiss.
(f) Respondent presented a separate defense with
regard to Charging Party Atkins. Robert L. Kenner is
self-employed and in the business of general 'truck repair.
He is head of K & D Truck Repair at 12209 South Indi-
ana Street, Chicago, Illinois. Since 1984, Kenner has per-
formed general truck repair and maintenance for Hui-
zinga Cartage. Kenner related an incident with Leonard
Atkins that occurred in August. Kenner was present at
the Cartage yard after Atkins had backed a truck
through a door while picking up a load at a customer lo-
cation. Kenner waited until Atkins returned with the
truck. Atkins remarked that "I almost got killed because
the truck had no brakes." Kenner inspected the truck
and found the brakes in working order. He had also no-
ticed that the brakes worked when Atkins pulled into the
yard with his tractor-trailer. Kenner asked if, at the cus-
tomer location, the hose had been hooked up properly to
the trailer to ensure that it did not roll. Atkins replied
"no" and Kenner told him "That is what you are sup-
posed to do." Atkins replied "You guys think I am
crazy." (Huizinga Jr. was standing with Kenner during
the conversation.) Atkins then continued by saying
"You, guys, are full of shit." Kenner testified that
Atkins' voice was slurring and that "he was not standing
too properly." Kenner stated it as his opinion that Atkins
was under the influence of alcohol and, in fact, that he
smelled the odor of alcohol on Atkins' breath.
Atkins went into Huizinga Jr.'s office and had a con-
versation with Huizinga Jr., which Kenner did not hear.
When Atkins came out of the office, Kenner overheard
him saying " I doesn 't [sic] have to work under these
conditions." Atkins then left.
Huizinga Jr. testified that Atkins was "a little wobbly"
during the conversation in the yard and that he slurred
his words. Huizinga gave his opinion that Atkins was
either drunk "or else he didn't have all his senses."8
When Huizinga Jr. talked to Atkins in the office follow-
ing the truck inspection, he suggested that Atkins would
have to fill out an accident report. Atkins replied "I
don't have to fill out an accident report and I quit."
Atkins then "stormed out the door."
Atkins' account of the incident is similar in that he tes-
tified that the trailer did hit the customer's door; that he
returned to the Cartage yard; and that Kenner inspected
the truck. Atkins denied being intoxicated or that he
quit. When he and Huizinga Jr. went into the office,
Atkins testified that Huizinga gave him his paycheck and
stated "I no longer need you."
I credit Kenner. He appeared, while testifying to be at-
tempting to relate events as he saw and heard them.
While it is true that he does business with Respondent, it
does not appear that his livelihood depends entirely on
Respondent's favor. He is, therefore, not in the economic
position of one of Respondent's supervisors, officers, or
employees. One need' not discount his testimony because
8 Huizinga did not smell alcohol but did testify that his sense of smell
is defective.
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of a concern that economic dependency may have tilted
it in Respondent 's favor. I also credit Huizinga Jr. about
the conversation with Atkins in the office . The remark
made by Atkins after leaving the office and overheard by
Kenner is more consistent with Huizinga 's account of the
office conversation than Atkins ' account. "I doesn 't [sic]
have to work under these conditions" is a remark more
consonant with Atkins ' having just quit after refusing to
file an accident report than with a sudden discharge.
Under these circumstances , I find that Atkins ( 1) failed
to properly hook up the bases on the trailer at the cus-
tomer location ; (2) was insubordinate to Huizinga Jr. at
the Cartage yard and in the office ; and (3) quit his em-
ployment with Huizinga. Respondent has therefore met
its burden under Wright Line of showing that it would
have taken the action it did (or more precisely Atkins
would have been separated from his employment as a
result of having quit) regardless of the union or concert-
ed activity in which Atkins participated.9
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent , set forth in section II,
supra, found to constitute unfair labor practices occur-
ring in connection with the operations of the Respondent
described in section I, supra, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. J. Huizinga Cartage Co., Inc. and Simpson Motor
Transportation, Inc. are a single integrated enterprise
within the meaning of the Act. As a single employer
they are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Locals 710 and 705 are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By laying off employees Floyd Richardson and
David Toles on or about August 26, 1986, Respondent
engaged in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
4. By threatening employee Floyd Richardson in the
latter half of August that he would be discharged if he
continued to seek union membership and benefits, Re-
spondent violated Section 8(a)(1) of the Act.
9 Atkins testified his last check was August 29 The charges with the
Human Rights office were filed on August 14. Copies were mailed to Re-
spondent . See Simosky 's testimony at Tr 301-302
5. By directing its employees Floyd Richardson,
David Toles , and Leonard Atkins on or about August 29
to sign subcontractor 's affidavits on pain of not being al-
lowed to work , Respondent violated Section 8 (a)(1) and
(3) of the Act.
6. Respondent has not in any other way violated the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, Respondent will be ordered to cease and
desist therefrom and to take the following affirmative
action which is deigned to effectuate the policies of the
Act. Respondent will be ordered to reinstate Floyd
Richardson and David Toles to their former jobs or sub-
stantially equivalent positions , without prejudice to their
seniority or other rights and privileges , and make them
whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by
payment to them of sums of money equal to those they
normally would have earned from the date of the dis-
crimination - to the date of reinstatement , in accord with
the method set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 ( 1987). Interest accrued
before January 1, 1987 (the effective date of New Hori-
zons), shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
General Counsel suggests that backpay be computed
on the basis of union rates as he believes the discrimina-
tees would have ultimately been successful in joining the
Union . I do not agree . Their attempt to join the Union
consisted basically of conversations with several people
at the union hall. No evidence here suggests what the
Union would ultimately have done with regard to their
applications . Whether the Union acted properly, or
should itself have been charged , is not an issue.
It will also be ordered that the usual "Notice to Em-
ployees" be posted . I do not find that the circumstances
here warrant and will not order a visitatorial clause as
requested by General Counsel. Cherokee Marine Termi-
nal, 287 NLRB 1080 (1987 ). I do not find that the unfair
labor practices committed by Respondent were so seri-
ous as to require a broad order. No evidence was submit-
ted to show that Respondent has a background of unfair
labor practices . Accordingly , I shall order that Respond-
ent cease and desist therefrom and in any like or related
manner refrain from interfering with , restraining, and co-
ercing its employees in the exercise of rights ' guaranteed
them in Section 7 of the Act. Hickmott Foods, 242
NLRB 1357 (1979).
[Recommended Order omitted from publication.]