Kenosha Auto Transport Corp.

National Labor Relations Board - Board Decisions

May 10, 1991

302 N.L.R.B. 888 (N.L.R.B. 1991)

888
302 NLRB No. 148
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to 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 evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
2 In adopting the judge’s conclusion that the 8(a)(5) allegation should not
be deferred to arbitration, we note that the allegation, although cast in terms
of ‘‘direct dealing,’’ is in reality an allegation of a refusal to deal with the
Union’s chosen representatives. In our view, the right to bargain through a
chosen representative is a basic principle of collective bargaining, and hence
we agree with the judge that a refusal to honor that right is a rejection of the
principles of collective bargaining. In addition, the Board has held, in deter-
mining whether to defer an 8(a)(5) allegation, that it will consider whether
there is a claim of employer animosity to the employees’ exercise of protected
rights. E. I. duPont & Co., 293 NLRB 896, 897 (1989). In this case, there
are such claims—the alleged violations of Sec. 8(a)(3) and (1) of the Act.
The judge concluded that the Respondent violated Sec. 8(a)(3) and (1) of
the Act by granting a raise to office employee Robin Hensley, and that the
Respondent violated Sec. 8(a)(1) of the Act by granting a raise to two other
office employees. The Respondent has excepted to these conclusions. We
adopt the judge’s conclusion with respect to Hensley, but we find it unneces-
sary to decide whether the raises granted the other two office employees vio-
lated Sec. 8(a)(1) of the Act. The additional findings, and the remedy therefor,
would be cumulative.
Kenosha Auto Transport Corporation and General
Teamsters, Sales & Services and Industrial
Union, Local No. 654, affiliated with the Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO. Cases 9–CA–26613 and 9–CA–26990
May 10, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 13, 1990, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this roceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
We adopt the judge’s conclusion that the Respond-
ent violated Section 8(a)(5) and (1) of the Act on the
following basis. On July 6, 1989, a dispute arose be-
tween the Respondent and the Union over the number
of trucks that employees would have to ‘‘deck’’ (pre-
pare for transport) per day. As more fully described by
the judge, the issue was first discussed among Union
Steward Donald Williams, Union Committeeman Sam
Herrin, and Terminal Manager Jim Burgel. Williams
telephoned Union Secretary-Treasurer Roy Atha, who
agreed to come to the plant to discuss the problem
with Burgel and the employees. Burgel was informed
of Atha’s intentions. That afternoon, Williams, Burgel,
and various employees discussed the dispute in the
lunchroom. Atha arrived during this discussion, in
which he took part. The dispute was resolved later that
afternoon by and during a telephone conversation
among Burgel, Corporate Officer Gordon Birdsall,
Herrin, and employee Gary Routzahn.
Because union committeeman Herrin participated in
the telephone conversation that resolved the dispute,
we do not, as did the judge, find that the Respondent
engaged in ‘‘direct dealing’’ with employees. Indeed,
the judge did not find, and we agree, that Burgel’s dis-
cussion with Williams and other employees in the
lunchroom violated the Act. Rather, and more pre-
cisely, the Respondent violated Section 8(a)(5) by fail-
ing to deal with the Union’s chosen representatives—
Atha and Williams—in resolving the dispute. See Co-
lumbia Portland Cement Co., 294 NLRB 410 (1989);
Arizona Portland Cement Co., 281 NLRB 304, 306–
307 (1986); Native Textiles, 246 NLRB 228, 229
(1979). We will modify the recommended Order and
notice accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Keno-
sha Auto Transport Corporation, Springfield, Ohio, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) Failing to bargain in good faith with the Union
as the exclusive bargaining agent of its employees in
the following appropriate unit by failing to allow the
Union’s chosen representatives to be present during a
discussion concerning the number of trucks which had
to be loaded per day by the unit employees. The ap-
propriate unit is:
‘‘The employees of Respondent described in the
National Master Automobile Transportation
Agreement of 1988, including all drivers, yard
employees, garage employees and mounting and
hookup employees, but excluding all professional
employees, guards and supervisors as defined in
the Act.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
889KENOSHA AUTO TRANSPORT CORP.
WE WILL NOT threaten our office employees with
layoff and more onerous working conditions if they se-
lect General Teamsters, Sales & Services and Indus-
trial Union, Local No. 654, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO as their
collective-bargaining agent or grant our office workers
a pay raise during the Union’s organizational cam-
paign.
WE WILL NOT discriminatorily grant a pay increase
to and lay off our employees in an attempt to discour-
age them from engaging in protected union activities.
WE WILL NOT fail to bargain in good faith with the
Union as the exclusive bargaining agent of our em-
ployees in the following appropriate unit by failing to
allow the Union’s chosen representatives to be present
during a discussion concerning the number of trucks
which had to be loaded per day by the unit employees.
The appropriate unit is:
Our employees described in the National Master
Automobile Transportation Agreement of 1988,
including all drivers, yard employees, garage em-
ployees and mounting and hookup employees, but
excluding all professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer employee Therese Langen immediate
and full reinstatement to her former job or in the event
her former job no longer exists to a substantially
equivalent job without prejudice to her seniority or
other rights and privileges, and make her whole for
any loss of earnings she may have suffered by reason
of her layoff, with interest.
WE WILL remove from our files any reference to the
disciplinary layoff of employee Langen and notify her
in writing that this has been done and that evidence of
this unlawful action will not be used as a basis for fu-
ture personnel action against her.
WE WILL on request bargain in good faith with the
Union as the exclusive bargaining agent of our em-
ployees in the above appropriate unit and meet and
bargain, on request, with the Union’s chosen represent-
atives for processing and resolving employee griev-
ances.
KENOSHA AUTO TRANSPORT CORPORATION
Mark G. Mehas, Esq., for the General Counsel.
C. John Holmquist, Esq., for the Employer.
William Puncer, Esq., for the Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges were filed in the above cases on July 7 and
November 13, 1989. A consolidated complaint issued on De-
cember 27, 1989. Charging Party Union represents a bar-
gaining unit consisting of Respondent Employer’s drivers,
yard employees, garage employees and hookup employees at
its truck shipment preparation facility in Springfield, Ohio.
The Employer and Union have entered into successive col-
lective-bargaining agreements since about 1979, the most re-
cent agreement being effective from June 1, 1988 through
May 31, 1991. General Counsel alleges that the Employer
unlawfully bypassed the Union and dealt directly with its
unit employees by refusing to allow a union representative
to be present during a discussion concerning the number of
trucks which had to be loaded per day by unit employees,
in violation of Section 8(a)(5) and (1) of the National Labor
Relations Act. In addition, the Employer’s office employees
at its Springfield facility were unrepresented. General Coun-
sel alleges that the Employer, in response to an attempt to
obtain union representation for the office employees, threat-
ened employees with layoff and more onerous working con-
ditions if they selected the Union as their collective-bar-
gaining agent, in violation of Section 8(a)(1) of the Act. Fur-
ther, General Counsel alleges that the Employer also
discriminatorily granted a pay increase to three of its office
employees and later laid off office employee Therese Langen
in an attempt to discourage employees from engaging in pro-
tected union activities, in violation of Section 8(a)(3) and (1)
of the Act. Respondent Employer denies violating the Act as
alleged. Respondent Employer also avers that the ‘‘under-
lying facts which have given rise to the initial complaint are
subject to resolution under the contractual grievance and ar-
bitration procedure . . . and any action by the Board should
be deferred . . . .’’
A hearing was held on the issues raised on April 5, 1990,
in Springfield, Ohio, and on the entire record, including my
observation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT
A. The Evidence Pertaining to the 8(a)(5) Allegations
Respondent is an Employer engaged in commerce and the
Union is a labor organization as alleged. The Union is the
exclusive bargaining agent of an appropriate unit of Re-
spondent’s truck shipment preparation employees at its
Springfield facility as alleged. The term of the current collec-
tive-bargaining contract between the parties, as noted, runs
through May 31, 1991. (See R. Exh. 1.) In addition, on
March 17, 1989, the parties entered into a local agreement
(G.C. Exh. 8) which provides, inter alia, for incentive pay for
yard unit employees who deck or prepare for transportation
more than six trucks each day. The agreement states:
After the incentive employees have decked six (6)
trucks they may go home provided they have worked
a minimum of six (6) hours, except for unusual heavy
inventory or emergencies.
Donald Williams is employed by Respondent at the
Springfield facility as a yard hand in the decking shed. He
was also the Union’s shop steward during the events in issue
here. He explained that Navistar
make[s] the trucks over there [on their property], they
bring them across the street, and we prepare these
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trucks on the decking lines [for piggyback] . . . trans-
portation across the country and delivery to specific
dealers.
He further explained that under the local agreement (G.C.
Exh. 8) ‘‘if you deck more than six trucks . . . you get paid
. . . $20 . . . each additional truck.’’ He also noted, how-
ever, that Navistar ‘‘shuts down’’ each summer and as
‘‘trucks begin to deplete in the yard they [Respondent Em-
ployer] start laying off the workers according to seniority
. . . .’’
The summer ‘‘shutdown,’’ according to Williams, started
during the last week of June and first week of July 1989.
Williams testified:
The first part of the shutdown . . . they may have
decked more than six trucks . . . . By the end of the
first week . . . we dropped back to six trucks . . . .
[I]f we continued to deck the trucks the way we had
been we probably would have run ourselves out of
work and then we would have been laid off.
In addition, on July 6, as Williams further testified:
[I]t had been brought to my attention that the Company
wanted us to deck more than we had agreed upon
. . . . They wanted us to go over six trucks a man
. . . . [W]e wanted to maintain what we had agreed
upon which is six trucks a man to preserve everybody’s
job as long as possible.
Union Steward Williams, accompanied by committeeman
Sam Herrin, met with Terminal Manager Jim Burgel during
the morning of July 6 to discuss the potential ‘‘problem’’
arising from requiring the unit workers to deck more than six
trucks. Herrin then stated to Burgel that ‘‘we did not feel
that there was a sufficient amount of trucks for us to deck
more than six trucks a man . . . the men felt like they all
wanted to stick together . . . and preserve our jobs as long
as possible . . . we were just going to deck six trucks a man
which had already been signed in the agreement and we were
willing to stick by that agreement.’’ Burgel replied: ‘‘he
wanted us to deck more than six trucks and the Company
would not accept anything less than that.’’ Burgel, however,
agreed ‘‘to come down and speak with the men and try to
work something out’’ ‘‘at lunch break’’ later that day. In the
meantime, Williams was informed that if any of the unit em-
ployees ‘‘tried to leave’’ without decking more than six
trucks ‘‘they were going to be fired.’’ Assistant Terminal
Manager Dan Spitzer confirmed this information to Williams.
Williams then telephoned the Union hall and spoke with
Union Secretary-Treasurer Roy Atha. Atha agreed to attend
the meeting with Burgel and the employees scheduled for the
‘‘lunch break.’’ Later that day, Burgel came down to the em-
ployees’ lunch room to speak with the workers. Burgel ‘‘had
gotten there a few minutes early’’ before Atha ‘‘showed
up.’’ Burgel ‘‘was told that ‘‘there would be some represent-
ative from the Union hall down there’’ ‘‘shortly’’ and asked
‘‘to wait.’’ Burgel replied ‘‘fine, when they get here we’ll
see what we can work out.’’ Burgel nevertheless proceeded
with the meeting before Atha showed up. Burgel told the
employees that ‘‘the Company could not accept anybody
leaving . . . unless they decked more than six trucks a
man.’’ A discussion ensued and questions were asked. Atha
then showed up and was permitted to attend and participate
in this meeting. Atha showed Burgel the ‘‘incentive agree-
ment’’ and explained that ‘‘he did not feel the Company had
a legitimate gripe . . . Navistar was on shut-down . . . sub-
stantiating all the things that had been said to Burgel of why
we shouldn’t stay and deck more trucks.’’ Burgel then an-
nounced that he had ‘‘to go upstairs and . . . try to get ahold
of Gordon’’ Birdsall, an officer of Respondent who was lo-
cated in Kenosha, Wisconsin.
Williams, Herrin, and Atha waited to hear from Burgel.
After a period of time, the three went ‘‘upstairs’’ to Burgel’s
office. Atha was then told that he had a telephone call and
the three went into a side office where Atha took the call.
Herrin, however, then walked into Burgel’s office. Williams,
as he testified,
walked out in the hallway and looked over and seen
Jim Burgel standing there with the door half open . . .
and Sam Herrin in there starting to take the telephone
in his hand . . . and so at that time I [Williams] started
to go towards the door to open the door, and Burgel’s
standing there and he Burgel] says, ‘‘Gordon [Birdsall
does not want you [Williams] in here, he wants you to
go downstairs and get [employee] Gary Routzahn, he
wants to speak to Sam [Herrin] and Gary [Routzahn].
Williams, a steward, noted that Herrin was only his com-
mitteeman and Routzahn was only a rank-and-file member.
Williams thereupon went back to Atha and told him
‘‘what was going on.’’ Atha, having finished his telephone
call, immediately attempted to participate in the meeting in
Burgel’s office. Atha and Williams could not get into
Burgel’s office because the door had been locked. Atha, re-
peatedly knocked on the door to Burgel’s office without any
response. Atha and Williams ‘‘sat there outside the office.’’
Finally, Herrin and Routzahn came out and announced that
the employees did not have to deck more than six trucks and
‘‘Gordon [Birdsall] said it’s okay for everybody to leave.’’
According to Williams, management had negotiated a settle-
ment of the Union’s grievance or complaint with a com-
mitteeman and rank-and-file member and precluded the stew-
ard and secretary-treasurer of the Union from being present
during this meeting. Atha then telephoned Todd Barnum, the
Employer’s representative in Kenosha, to complain and ‘‘in-
form him that [Atha] was going to take further action.’’
Roy Atha, the Union’s secretary treasurer, testified that on
the day in question he had been notified by his Steward Wil-
liams that the Employer ‘‘was trying to make them do . . .
more work . . . that was not what the agreement was’’; that
he agreed to then go to the terminal; that when he arrived
there the meeting was in progress; that he ultimately asked
Burgel if he could speak privately with the employee mem-
bers; that Burgel agreed and ‘‘went upstairs’’; that he too
later went upstairs to meet with Burgel; that he stopped to
take a telephone call; and that
when I [Atha] finished with the phone call . . . Wil-
liams says . . . ‘‘well he’s [Burgel] took Routzahn and
Herrin into the office [and] . . . Routzahn told me
[Williams] I’m not going in there without Roy coming
in.’’
891KENOSHA AUTO TRANSPORT CORP.
Atha then went to the door of Burgel’s office and repeatedly
knocked on the door and attempted to push it open without
any response. Atha also telephoned Todd, the Employer’s of-
ficial in Kenosha, to complain that Burgel had ‘‘locked [him]
out of the office.’’ Atha explained:
I felt they wasn’t allowing me the right to represent my
people and to be in the room with them . . . I’d been
at many meetings in that office . . . and the door was
never locked before.
Gary Routzahn testified that he is employed by Respond-
ent as a decker at Springfield and holds no position with the
Union; that on July 6 he attended a meeting in the break
room where Burgel ‘‘wanted us to deck eight trucks a man
instead of six . . . ’’; that Atha showed up after the meeting
had started; that Burgel left the meeting and went upstairs;
and that later Burgel
came down . . . and asked me to come upstairs . . .
Gordon Birdsall was on the telephone [and] wanted to
talk to us . . . . I told him I’d go in [the office] when
Roy [Atha] got off the phone. . . . He said . . . Roy
will be off the phone in a minute, just go into the of-
fice.
Burgel ‘‘closed and locked the door.’’ Herrin and Roger
Crum, a company representative, were also in the office and
there was in progress an open speaker telephone conversation
with Birdsall. Birdsall then announced that ‘‘he was in agree-
ment with our [the Union’s] stand, . . . [due] to low inven-
tory . . . all we had to do was six trucks a man.’’ During
this meeting, Routzahn heard knocks on the door but Burgel
did not open the door.
Gordon Birdsall, executive vice president for Respondent
Employer, testified that on July 6 Union Representatives Roy
Atha and Harry Geesic had telephoned him and assertedly
had complained to him that the ‘‘Sam Herrin-Gary Routzahn
group [had] disqualified a driver’’ at the Springfield facility
and they ‘‘don’t think it’s right.’’ According to Birdsall,
these union representatives were complaining to him that
they ‘‘don’t think it’s right that . . . the Union group should
be disqualifying other drivers coming in to work on their
line.’’ Birdsall agreed to ‘‘correct the situation.’’
Birdsall, as he further testified, then telephoned Burgel at
Springfield to ‘‘correct’’ this ‘‘situation.’’ Burgel, in this
telephone conversation, told Birdsall about his ‘‘problem’’ as
a result of his attempt to require the employees to deck more
than six trucks per man. Birdsall, after a brief discussion, ap-
prised Burgel that ‘‘I agree with the guys in the yard.’’
Birdsall then instructed Burgel ‘‘to bring’’ Sam Herrin and
Gary Routzahn ‘‘on the phone.’’ After Burgel had Herrin
and Routzahn on the telephone, Birdsall then apprised the
two that they ‘‘can’t disqualify people’’ or ‘‘drivers.’’
Birdsall also told the two that he ‘‘agree[d] with [their] posi-
tion’’ about not decking more than six trucks per man.
Birdsall asserted that ‘‘if I’d known that [Roy Atha] was out-
side I’d have invited him in.’’
Roger Crum, the Employer’s director of operations and
previously assistant to the executive vice president, testified
that on July 6 ‘‘Roy Atha showed up’’ at Springfield ‘‘and
was representing the men in terms of a dispute as to whether
or not they should deck six trucks per man or eight trucks
per man’’; that he, Crum, was later present when ‘‘Birdsall
talked’’ on the telephone to Burgel, Herrin and Routzahn in
Burgel’s ‘‘locked’’ office; that Birdsall previously had in-
structed Burgel to ‘‘get’’ Herrin and Routzahn in the office;
that Birdsall then told Nerrin and Routzahn that they ‘‘can-
not disqualify a driver’’; and that Birdsall also apprised
Herrin and Routzahn that he, Birdsall, agreed that the em-
ployees did not have to deck more than six trucks per man.
Crum was aware that Union Secretary-Treasurer Atha was
then ‘‘downstairs’’ ‘‘to discuss the particular problem’’ about
decking more than six trucks. Crum was also aware that
Union Steward Williams ‘‘was out there.’’ No effort was
made to get these ‘‘higher ranking Union officials’’ into the
office. In fact, Burgel and Crum ignored knocks on the door
and efforts of someone to get into the office.
Springfield Terminal Manager Jim Burgel testified that on
July 6 he summoned Herrin and Routzahn to his office to
talk to Birdsall on the telephone; that his door was ‘‘locked’’
during this telephone discussion; that Routzahn had said ‘‘I
[Routzahn] want Roy [Atha] to go with me’’; that Atha
‘‘was in the adjoining office on the telephone’’ at the time;
that he did hear a knock on the door during this telephone
discussion; and that he refused to open his door. Burgel
claimed that ‘‘I never open my door when somebody knocks
. . . .’’
B. The evidence Pertaining to the 8(a)(1) and
(3) allegations
The Employer’s Springfield office employees, as noted,
were unrepresented. On June 30, 1989, the Union wrote the
Employer stating that it ‘‘has the majority of the Kenosha
Auto office employees signed up’’ and requested that the
Employer comply with its regional contract. Thereafter, on
July 6, the Union filed a representation petition with the
Board seeking to represent all full time and regular part time
office employees at the Springfield facility. A Board-con-
ducted representation election was held on August 29 and, of
approximately ten eligible voters, seven votes were cast for
and three votes were cast against the Union. Certification
issued on September 14. (See G.C. Exhs. 2 through 5.)
Therese Langen testified that she started working at the
Employer’s facility during October 1988 as a ‘‘temporary’’
from Manpower Temporary Services; she later became a reg-
ular full-time office employee of Respondent on April 4,
1989; and she ‘‘mainly did payroll for the drivers.’’ She sub-
sequently became active in a campaign to have the ten office
employees represented by the Union. She discussed the
Union with other personnel; passed out Union membership
cards to her coworkers; and signed a card herself. These ac-
tivities principally took place ‘‘in the back office’’ during
late June 1989.
Langen recalled that, subsequently, about early July, each
of the ten office employees was separately called into ‘‘the
office in the front’’ to meet with the Employer’s human rela-
tions representative Cy Phippen and Terminal Manager Jim
Burgel. Phippen then ‘‘stated what he liked and disliked
about Unions’’ and asked Langen ‘‘if there were any prob-
lems he might adjust.’’ She replied ‘‘no.’’ Later, on the day
before the election, as Langen further testified,
[Management official] Gordon Birdsall came in from
Kenosha and he was talking about the Union and told
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hensley recalled that during her 9 years of employment she had only been
laid off once in 1982 because of rather unusual economic circumstances. Inter-
national Harvester, predecessor to Navistar, was then ‘‘virtually bankrupt’’;
‘‘we were very slow at the time’’; ‘‘I had sat with maybe two to three hours
of work a day for two to three months before I was finally laid off’’ for 9
months.
us there was layoffs and such across the street at
Navistar. [W]e drive—haul away their trucks. And [he]
said if there was a slow down there, there would likely
. . . be a slow down with Kenosha . . . there would
probably be layoffs, either between one to two girls
most likely. And he was talking about things which he
didn’t like about the Union.
Langen noted that earlier that same day Birdsall ‘‘went
around’’ the facility and ‘‘gave little comments to every-
body.’’ Birdsall then
looked at [Langen] and told [her]—like he knew [she] had
signed a card, told [her] [she] was stupid for signing a card.
The representation election was held on August 29 and
certification issued on September 14. On October 16, Ter-
minal Manager Burgel called Langen to his office. Burgel
told Langen that there ‘‘was a slow down [in] productivity’’
and she was laid off. Langen acknowledged that she was the
least senior office employee; however, she noted that Jen-
nifer Bail, ‘‘a temporary employee with Manpower Serv-
ices,’’ ‘‘continued to work.’’ Langen claimed that she ‘‘prob-
ably could have done’’ the work performed by Bail. Further,
Langen also noted that prior to her layoff she had worked
40-hour workweeks with about 4 hours of overtime on Satur-
days.
Robin Hensley has been employed by Respondent as an
office clerical for over 9 years. Hensley testified that on Sat-
urday June 24, 1989, coworker Langen ‘‘approached’’ her at
work and ‘‘told [her] that they were signing [Union] cards
in the back room.’’ Hensley did not ‘‘go back there’’ be-
cause her previous manager, Gerald Winters, had warned her
some time earlier that ‘‘he didn’t ever want to catch [her]
discussing a Union again.’’ Hensley instead ‘‘reacted out of
fear’’ on June 24 and ‘‘informed’’ Terminal Manager Burgel
‘‘that there were Union cards . . . around’’ and she ‘‘did not
want to get in trouble for it.’’ She identified ‘‘some’’ of the
employees involved to Burgel. She ‘‘believe[d]’’ that she
then ‘‘mention[ed]’’ Langen’s name.
Two days later, on Monday June 26, Hensley was sum-
moned to a meeting with Burgel and Phippen in Burgel’s of-
fice. All the office workers were ‘‘called in one at a time’’
to similar meetings. Phippen then stated to Hensley that
‘‘going Union would not be a good idea’’; that Hensley ‘‘did
a wonderful job’’; and that Hensley would receive a pay
raise of over $1 an hour. Phippen also stated that ‘‘he appre-
ciated [Hensley’s] effort’’ in informing on her coworkers’
union activities. The last time Hensley had received a raise
was in February 1989 for $.30 an hour, and her last raise for
over a dollar an hour was in 1984.
Hensley testified that on August 28, the day before the
representation election, Birdsall and Phippen conducted meet-
ings with the assembled office employees, as follows:
He [Birdsall] said he wanted to discuss with us the rea-
sons why he felt in his opinion a labor Union would
not be to our best interest. Because, in the past, we had
not had to deal with being laid off during shutdowns
or slowdowns. But, if we was to go to the Union, he
would at that time have to start addressing layoffs. He
also informed us that if we did go Union at least one
or two jobs would be done away with because they
would have to adjust for compensation that they would
lose, they couldn’t [afford] to absorb it without passing
it on . . . . And he said that he would appreciate a no
vote . . . because then they could address all our prob-
lems and complaints without a third party involved.
And he said he wanted us to take a look at the west
coast, because we had terminals out there that was
unionized and they only had two girls to handle the
same amount of drivers as what we had. And he also
had always looked upon us as an extension of Manage-
ment. And if we decided to go Union, he would no
longer look at us in this manner. And he also said that
he wanted us to take into consideration that in the past
we’ve always written in our time, kept our own time
on time cards, and we had not had to punch in and out
on a time clock. But, if we went Union . . . we would
have to go to using a time clock.
Hensley testified that there are ‘‘normally slow periods’’
about ‘‘two times a year’’ when Navistar is ‘‘shut down’’;
however, none of the office clerical employees have ‘‘ever
been laid off during those slow periods.’’1 Hensley recalled
that when Langen was laid off on October 16, ‘‘about every-
body except [herself] was working some overtime [during]
the week’’ and on Saturdays. Hensley did not work overtime
during the week because she had another job. Hensley added:
‘‘Before the Union went in . . . everybody worked on Satur-
days.’’ Moreover, ‘‘all overtime’’ did not stop when Langen
was laid off; it ‘‘was some time after [Langen] was laid off
that we were told or certain people in the office was told not
to work any more overtime.’’ Hensley nevertheless has con-
tinued to work Saturday overtime ‘‘nonstop’’ since the layoff
of Langen. And, a ‘‘temporary’’ from Manpower has contin-
ued to work at the facility.
Gail Johnson has been employed by Respondent for 15
years as an office worker. Johnson testified that on the day
before the representation election Birdsall spoke to the ‘‘of-
fice girls,’’ as follows:
he [Birdsall] hoped we would vote yes for the Com-
pany and no for the Union . . . if the office did go
Union there would be layoffs . . . whereas in the past
he had worked us during slow periods and shutdowns
. . . he would have to lay off . . . .
Johnson also testified that Jennifer Bail, a ‘‘temporary’’ from
Manpower, ‘‘was brought in to assist her with the ‘‘Navistar
Computer System’’; however, Johnson believed that Bail also
‘‘did work’’ for the Terminal Manager and Langen ‘‘is capa-
ble of [performing] that’’ work. Further, before Langen’s
layoff on October 16, ‘‘just about everyone’’ had worked
overtime, and ‘‘after the layoff ‘‘we still worked overtime.’’
Johnson added that operations slowed down about twice a
year when ‘‘the Navistar people shut down for vacations’’;
‘‘it was slowing’’ when Langen was laid off; and in the past
there had not been any layoffs of office personnel which she
could recall ‘‘as a result’’ of such slowdowns.
893KENOSHA AUTO TRANSPORT CORP.
Kay Mammolite is Respondent Employer’s Springfield of-
fice manager. Mammolite testified that she attended the
meeting of office workers conducted by the Employer the
day before the representation election. According to
Mammolite, Birdsall ‘‘just said that he was sorry that this
had to happen’’; ‘‘he was just really discussing the business
aspect of the Company, that Navistar is our main source of
income and if Navistar’s business goes down so does ours.’’
Elsewhere, she generally denied ‘‘any discussion’’ ‘‘about
layoffs’’; ‘‘time clocks’’; or ‘‘the elimination or reduction of
jobs.’’
Mammolite further testified that office employee Langen
‘‘did all the check-in [work] for the drivers’’ prior to her
‘‘layoff’’ in October; ‘‘she might have also called in plane
reservations or something’’; and ‘‘she did fill in for [office
employee] Nancy [Insley] once . . . input[ing] information
for payroll into the computer.’’ Mammolite next claimed that
the ‘‘Manpower person’’ also working at the Springfield fa-
cility during October ‘‘was paid by Harvester’’ because she
was working on their computer system. Mammolite, how-
ever, would ‘‘pay’’ ‘‘ Manpower’’ and then ‘‘invoice Har-
vester’’ or Navistar. Mammolite further identified Respond-
ent’s Exhibit 2 as a compendium of the overtime worked by
the office employees during 1989 and early 1990.
Mammolite acknowledged that there was overtime ‘‘Saturday
dispatch’’ ‘‘all the way through 1989.’’ Mammolite claimed
that not all of the office employees ‘‘work on Saturdays’’;
‘‘the people with the most seniority have the opportunity to
work Saturday.’’ I note that Respondent’s Exhibit 2 shows
that, following Langen’s ‘‘layoff’’, all nine of the remaining
office personnel worked some overtime. I note further that
Langen worked overtime up to her ‘‘layoff.’’
Nancy Insley is employed by Respondent at Springfield as
payroll clerk. She explained her various duties and those of
her coworkers. She claimed that Birdsall, during his talk with
the employees before the representation election, ‘‘told the
girls that he would hate to see them go Union’’; ‘‘he didn’t
want a Union in there’’; ‘‘a Union office isn’t no good.’’
She generally denied that he ‘‘threaten[ed] anybody’’; how-
ever, she acknowledged that he did say ‘‘the number of em-
ployees would be cut’’ ‘‘if business got bad’’ ‘‘as in past
practice.’’ Elsewhere, when asked to discuss layoffs in the
past other than those caused by or related to Harvester Inter-
national ‘‘strikes,’’ she cited a layoff in 1967. Then, she gen-
erally claimed that ‘‘when drivers would be laid off office
employees would get laid off.’’
Hellen Cornell is also employed by Respondent at Spring-
field . She has worked there for 38 years performing ‘‘just
general office work.’’ She too attended the meeting the day
before the election. Birdsall told the employees, inter alia,
that ‘‘there would probably be layoffs.’’ Elsewhere, she
could not ‘‘remember’’ whether Birdsall ‘‘mention[ed]
whether his trip had anything to do with the election that was
coming up’’ or that the Employer’s West Coast facilities
were unionized. She denied that he mentioned the use of a
‘‘time clock.’’ She claimed that ‘‘when Navistar’s production
goes down there is layoffs’’ and she has been laid off. She
was asked ‘‘how long ago was that?’’ She replied: ‘‘I’ve
been there a long time. So, it’s been a long time since I’ve
been laid off.’’
Gordon Birdsall, executive vice president for Respondent
Employer, testified that he spoke with the Springfield office
employees shortly before the representation election. Burgel
and Phippen were with Birdsall. Birdsall assertedly told the
employees, inter alia, ‘‘if you feel you want a Union to rep-
resent you that’s fine . . . you can vote either way you want
to.’’ Birdsall claimed that ‘‘somebody brought the subject’’
of ‘‘layoffs’’ ‘‘up’’ and he responded that ‘‘I don’t know
whether we will or not . . . if business goes down we will
. . . if business goes up we’ll hire people.’’ Birdsall denied
discussing ‘‘time clocks’’ and ‘‘job elimination’’; he assert-
edly would not ‘‘threaten people.’’ Birdsall denied having
any conversation with Langen about her involvement in the
Union campaign; however, he ‘‘might have walked around to
every office [and asked everybody how they was doing
. . . .’’
Birdsall next addressed the alleged pay raises given to
three office employees during this time. According to
Birdsall, early in 1989 the Employer ‘‘did pass along a four
and a half to five and a half percent increase straight across
[the board] . . .’’; this would amount to an hourly increase
for the office workers of about 40 cents. After implementa-
tion of this increase, Burgel assertedly notified Birdsall that
Hensley was ‘‘dissatisfied’’ with this ‘‘increase.’’ Birdsall
had Phippen ‘‘analyze that’’ and report back. Phippen assert-
edly investigated the matter ‘‘sometime in June or July’’
1989. Birdsall was ultimately notified that ‘‘there were two
or three people that were doing an excellent job and deserved
a merit raise.’’ Birdsall ‘‘approved it.’’ Birdsall was asked if
he could ‘‘recall when [he] approved it?’’ He responded gen-
erally: ‘‘probably at the time they [his representatives] came
back and talked to me about it . . . .’’
Birdsall next addressed Langen’s layoff in October.
Birdsall testified that ‘‘up until July we were having a great
year’’; ‘‘in July things started to fall to pieces’’; ‘‘we had
people on layoff’’; and he telephoned the various operations,
including Springfield, and stated ‘‘are you laying people off
and if not why not because we are not going to make money
at your terminal.’’ Birdsall was asked when did his ‘‘con-
versation’’ with the Springfield facility take place and he re-
sponded:
My guess would be in July and August and September,
October, November, December, and it’s still going on.
In fact we have a Terminal Manager’s meeting today
which I should be at because we’re loosing our shirt
and our Company.
Birdsall then asserted that the ‘‘reason’’ for Langen’s layoff
in October was ‘‘because we had over 25 percent of our
drivers laid off . . . .’’ (See R. Exhs. 3 and 4.) Birdsall ex-
plained the method by which Management made this deter-
mination, as follows:
[W]e would have laid two people off, I remember the
discussion on Therese and there was another one . . .
I think it was Alberta, I’m not positive. . . . [The
Springfield personnel] said . . . Alberta is in payroll
. . . and the girl next to her does not know her job or
we could probably lay her off, and I said I’d approve
the layoff . . . .
Only Langen was laid off at the time . Birdsall noted that
Manage ment continued to utilize a ‘‘Manpower temporary’’
at Springfield. He asserted that Navistar ‘‘wanted a Man-
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Hensley testified that shortly after receiving her February 1989 pay in-
crease she expressed dissatisfaction to Burgel; Burgel then told her that he
could not get her an additional raise; and she had no other discussions with
Burgel concerning this subject until June 26, as recited above. See Tr. pp. 52
to 53.
power girl in there’’ working on the computer system and
‘‘we don’t argue with them.’’ Birdsall added that he has re-
cently been advised that ‘‘we’re getting busier’’ and Langen
has been sent a ‘‘letter of recall.’’
Roger Crum, the Employer’s director of operations and
previously assistant to the executive vice president, testified
that Respoondent’s Exhibit 5 shows the 1989 ‘‘change of
pay rate for salaried [office] employees’’ at Springfield. Re-
spondent’s Exhibit 5 shows changes of rates for three of the
Springfield office employees. In one instance, the rate
change is purportedly ‘‘effective’’ on June 1 and in the two
remaining instances the rate change is purportedly ‘‘effec-
tive’’ on June 16, 1989. Crum claimed that the so-called ‘‘ef-
fective’’ date means ‘‘that’s the date the pay increase is ap-
proved and that’s the date from which it will be used.’’
Crum added that ‘‘no increases . . . are processed until they
have been initialled by’’ Birdsall; there is no date on Re-
spondent’s Exhibit 5 which would show when Birdsall ini-
tialed the raises; and, apparently, ‘‘we wouldn’t know when
[the particular] employee[s] got their pay raise . . . .’’
Springfield Terminal Manager Jim Burgel testified that he
attended a meeting in August on ‘‘the day before the elec-
tion’’ where Birdsall spoke to the office personnel, as fol-
lows:
Mr. Birdsall was telling the girls . . . he knew they
were having an election and that he would hope that
they would be satisfied with what they had . . . that’s
all I remember.
Burgel next testified that he had numerous discussions with
office employee Hensley about pay raises; Hensley was un-
happy in February 1989 with her pay increase; he told her
that he ‘‘couldn’t probably do anything for her for two or
three months’’ but he ‘‘would see what [he] could do’’; he
‘‘got’’ her a pay increase of over one dollar an hour in ‘‘ap-
proximately June of 1989’’; this raise was ‘‘supposed to be
effective June l’’; and he was ‘‘not sure when she got it
. . . .’’ 2 Elsewhere, Burgel acknowledged that Hensley
‘‘came to me one time and said that they were signing cards
to join the Union.’’ Burgel claimed that Hensley did not then
say ‘‘who was signing cards.’’
Burgel next testified that he handed employee Langen a
copy of Respondent’s Exhibit 6 advising the employee of her
layoff. I note that Respondent’s Exhibit 6 is an April 3, 1987
notice to another employee and recites: ‘‘we have for some
time had considerable questions as to whether you and your
work are really compatible with our system.’’ Burgel assert-
edly had previously been told by Birdsall that he had reduced
his ‘‘drivers’’ and ‘‘how come [he] hadn’t reduced [his] of-
fice staff by at least two girls.’’ Burgel thereafter continued
to use the ‘‘Manpower temporary’’ to work on the Navistar
computer program. He generally claimed that Langen
‘‘wasn’t qualified’’ for that work. In addition, the Employer
continued to work overtime with respect to the remaining of-
fice personnel.
I credit the testimony of Donald Williams, Roy Atha, Gary
Routzahn, Therese Langen, Robin Nensley, and Gail Johnson
as detailed above. Their testimony is in significant part mutu-
ally corroborative. Their testimony is also in significant part
substantiated by admissions and acknowledgements of Re-
spondent’s witnesses. And, on this entire record, including
the demeanor of the witnesses, they impressed me as reliable
and trustworthy witnesses. On the other hand, Gordon
Birdsall, Roger Crum, Jim Burgel, Kay Mammolite, Nancy
Insley, and Hellen Cornell did not impress me as reliable or
trustworthy witnesses. Their testimony was at times, as dem-
onstrated above, vague, incomplete, contradictory and un-
clear. Thus, for example, I find incredible Birdsall’s asser-
tions to the effect that he told the Springfield office workers
‘‘if you feel you want a Union to represent you that’s fine’’
or the Employer’s related assertions to the effect that efforts
were under way to give three office workers substantial hour-
ly pay increases before the Union had attempted to organize
them. I find instead, as discussed below, that the Employer,
in an attempt to defeat the Union’s organizational effort,
threatened the office employees, granted a pay increase to
three of them and then laid off Langen, a key union protago-
nist, as credibly related by Langen, Hensley, and Johnson. I
also find, as discussed below, that the Employer, annoyed at
the Union’s insistence that the Employer comply with its
local agreement with respect to decking only six trucks per
man, bypassed the senior union representatives who came to
the terminal to resolve this dispute, locked them out of the
meeting where the Employer announced that it was agreeing
with the Union’s position and instead dealt with a rank-and-
file worker and committeeman, as credibly related by Wil-
liams, Atha, and Routzahn.
Discussion
Section 7 of the National Labor Relations Act guarantees
employees the ‘‘right to self-organization, to form, join or as-
sist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as the right ‘‘to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer ‘‘to
interfere with, restrain or coerce employees in the exercise
of’’ their Section 7 rights. Section 8(a)(3) forbids ‘‘discrimi-
nation in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage
membership in any labor organization . . . .’’ It is settled
law that a ‘‘grant or promise of benefits made during an or-
ganizational effort will be considered unlawful [in violation
of Section 8(a)(1) of the Act] unless the employer can pro-
vide an explanation, other than organizational activities, for
the timing of the grant or announcement of such benefits.’’
See Veteran’s Thrift Stores, 272 NLRB 572 (1983). In addi-
tion, it is equally settled that an employer runs afoul of the
proscriptions of Section 8(a)(1) of the Act where he threatens
employees with layoffs and more onerous working conditions
if the employees select a union to represent them. See NLRB
v. Gissel Packing Co., 395 U.S. 575, 616–620 (1969). And,
an employer, under settled principles, violates Section 8(a)(3)
of the Act by discriminatorily granting wage increases and
laying off employees in an effort to discourage employees
from supporting a union.
895KENOSHA AUTO TRANSPORT CORP.
3 I find and conclude that the pay raise granted to 3 of the 10 employees
clearly violated Sec. 8(a)(1) of the Act. I also find, in the case of employee
Hensley, that the granting of her pay raise was discriminatorily motivated and
further violated Sec. 8(a)(3) of the Act. It is unnecessary for me to determine
here whether the pay raise similarly granted to two other office workers has
also been shown by sufficient proofs to have been discriminatorily motivated.
The remedy would, under the circumstances, be the same.
Applying these settled principles to the credited evidence
of record, as recited supra, I find and conclude that Respond-
ent Employer was strongly opposed to the Union’s attempt
to represent its ten office workers at Springfield and resorted
to proscribed coercive conduct. Employee Hensley credibly
recalled that Company Executive Vice President Birdsall ad-
monished the assembled office employees shortly before the
scheduled representation election, as follows:
a labor Union would not be to our best interest . . . in
the past we had not had to deal with being laid off dur-
ing shutdowns or slowdowns . . . if we was to go to
the Union, he would at that time have to start address-
ing layoffs . . . if we did go Union at least one or two
jobs would be done away with because they would
have to adjust for compensation that they would lose
. . . he wanted us to take a look at the west coast be-
cause we had terminals out there that was unionized
and they only had two girls to handle the same amount
of drivers as what we had . . . and he also said that
he wanted us to take into consideration that in the past
we’ve always written in our time, kept our own time
on time cards and we had not had to punch in and out
on a time clock . . . if we went Union . . . we would
have to go to using a time clock.
Employee Johnson credibly recalled that Birdsall warned the
assembled office workers:
if the office did go Union there would be layoffs . . .
whereas in the past he had worked us during slow peri-
ods and shutdowns . . . he would have to lay off
. . . .
And, employee Langen credibly recalled that Birdsall warned
the assembled office workers that ‘‘there would probably be
layoffs . . . one to two girls most likely.’’
I find and conclude that Management, by the foregoing
statements, had threatened employees with layoff and more
onerous working conditions if they selected the Union as
their collective-bargaining agent, in violation of Section
8(a)(1) of the Act. Counsel for Respondent argues that man-
agement’s statements were privileged speech under Section
8(c) of the Act (Br. p. 45). However, Birdsall’s coercive
statements, quoted above, cannot reasonably be regarded on
this record as privileged speech under Section 8(c) or ‘‘care-
fully phrased on the basis of objective fact to convey an em-
ployer’s belief as to demonstrably probable consequences be-
yond his control . . . .’’ See NLRB v. Gissel Packing Co.,
395 U.S. 575, 616–620 (1969); Overnite Transportation Co.,
296 NLRB 669 (1989).
In addition, Respondent Employer, as part of this attempt
to block its office workers from obtaining union representa-
tion, discriminatorily granted a pay increase during the
Union’s campaign. As employee Hensley credibly recalled,
on Saturday, June 24, coworker Langen ‘‘approached’’ her at
work and ‘‘told [her] that they were signing [Union] cards
in the back room.’’ Hensley did not ‘‘go back there’’ be-
cause her previous manager, Gerald Winters, had warned her
some time earlier that ‘‘he didn’t ever want to catch [her]
discussing a Union again.’’ Hensley instead ‘‘reacted out
offear’’ on June 24 and ‘‘informed’’ Terminal Manager
Burgel ‘‘that there were Union cards . . . around’’ and she
‘‘did not want to get in trouble for it.’’ She identified the
employees involved to Burgel. Two days later, on Monday
June 26, Hensley was summoned to a meeting with Manager
Burgel and Company official Phippen in Burgel’s office. All
the office workers were ‘‘called in one at a time’’ to similar
meetings. Phippen then stated to Hensley that ‘‘going Union
would not be a good idea’’; that Hensley ‘‘did a wonderful
job’’; and that Hensley would receive a pay raise of over $1
an hour. Phippen also stated that ‘‘he appreciated [Hensley’s]
effort’’ in informing on her coworkers’ union activities. The
last time Hensley had received a raise was in February 1989
for about $.30 an hour, and her last raise for over a dollar
an hour was in 1984. Company Representative Birdsall ac-
knowledged that two other office workers were also given
raises at the same time.
Counsel for Respondent asserts that there was a ‘‘commit-
ment to give a raise [here] made well before the election
campaign got under way’’ (Br. p. 44). The credited evidence
of record, detailed above, does not support this assertion. In-
stead, I find and conclude that Respondent discriminatorily
granted a substantial pay raise in an effort to discourage em-
ployee support of the Union, in violation of Section 8(a)(3)
and (1) of the Act.3
The Union won the Board-conducted representation elec-
tion and certification issued on September 14. Then, on Oc-
tober 16, Terminal Manager Burgel suddenly laid off em-
ployee Langen because there assertedly ‘‘was a slow down
[in] productivity.’’ I find and conclude on the credited evi-
dence of record, detailed above, that Respondent, as part of
its antiunion campaign, laid off employee Langen in retalia-
tion for her known union efforts. Thus, employee Langen
played a key role in the Union’s organizational effort. Man-
agement became aware of Langen’s prounion role when co-
worker Hensley informed on these protected union activities.
Indeed, Birdsall, during his visit to Springfield, where he
threatened employees with layoffs and more onerous working
conditions if they voted for the Union, pointedly admonished
Langen: ‘‘[she] was stupid for signing a card.’’
Respondent Employer, in the past, had not laid off its of-
fice personnel during the seasonal shutdowns or slowdowns
in Navistar’s or Harvester International’s production.
Birdsall, however, made clear to the office workers that
if the office did go Union there would be layoffs . . .
whereas in the past he had worked us during slow peri-
ods and shutdowns . . . he would have to lay off . . .
in the past we had not had to deal with being laid off
during shutdowns or slowdowns, . . . if we was to go
to the Union he would at that time have to start ad-
dressing layoffs . . . .
Employee Langen, following certification, was then singled
out for layoff. The remaining office workers continued work-
ing overtime. Langen even had worked overtime up to her
sudden layoff. Management also continued to use ‘‘tem-
porary’’ office personnel to do work which Langen appar-
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Counsel for Respondent argues that the 8(a)(5) allegations should be de-
ferred to the contractual grievance-arbitration process (Br. p. 42). The Board,
however, has made clear that ‘‘it will not defer in cases where the employer’s
conduct arguably constitutes’’ a ‘‘rejection of the principles of collective bar-
gaining.’’ See Dallas & Mavis Forwarding Co., 291 NLRB 980 (1988), and
cases cited. Respondent Employer’s conduct in the instant case arguably con-
stitutes a rejection of the principles of collective bargaining.
ently could have performed. Moreover, the Employer’s
records (R. Exh. 3) only show some 32 Kenosha drivers on
layoff status during the week of Langen’s layoff in October.
These same weekly records for the preceding January show
66 and 90 drivers on layoff; 51, 103, and 70 drivers on lay-
off in July; 40 and 61 drivers on layoff in August; and 42
and 48 drivers on layoff in September. These and related
records provide no credible justification for the Employer’s
sudden and unusual layoff of Langen on October 16.
I find and conclude that Management threatened its office
employees with layoff during seasonal slowdowns and shut-
downs if they voted for the Union and, following Board cer-
tification, made good on this threat by laying off known
union protagonist Langen, in violation of Section 8(a)(3) and
(1) of the Act. I reject Respondent’s assertion that Langen
was in fact laid off for economic reasons (Br. p. 50) as not
supported by the credible evidence of record. Moreover, I
would not find on this record that Langen would have, in
any event, been laid off for lawful economic reasons regard-
less of her protected Union activities. As noted, in the past,
the Employer did not lay off these office employees during
such seasonal slowdowns or shutdowns.
General Counsel also alleges that Respondent Employer
violated Section 8(a)(5) and (1) of the Act. Section 8(a)(5)
makes it an unfair labor practice for an employer ‘‘to refuse
to bargain collectively with the representative of his employ-
ees.’’ Section 8(d) of the Act explains:
to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to wages, hours and other terms
and conditions of employment, or the negotiation of an
agreement or any question arising thereunder . . . .
It is settled law that an employer runs afoul of the above
statutory obligation where he bypasses a union which rep-
resents his employees and instead deals directly with the em-
ployees. See Dallas & Mavis Forwarding Co., 291 NLRB
980 (1988) (involving a related employer and conduct of
Birdsall). The gravamen of the violation is that such conduct
‘‘tend[s] to undermine the position of the union’’ and is
‘‘subversive of the mode of collective bargaining . . . or-
dained’’ by the Act. See NLRB v. Goodyear Aerospace
Corp., 497 F.2d 747, 752 (6th Cir. 1974), and cases cited.
In the instant case, Respondent Employer was attempting
to violate its local agreement with the Union by requiring the
unit employees to deck more than six trucks. Union Sec-
retary-Treasurer Atha and Steward Williams went to the Em-
ployer’s facility on July 6 to press their grievance and com-
plaint for this contractual violation. Terminal Manager
Burgel initially conferred with Atha and Williams at the fa-
cility in the downstairs break area. The meeting was then ad-
journed to Burgel’s office. Burgel, however, instead of wait-
ing for Atha and Williams to attend this continued meeting,
instructed Williams that he could not enter his office, sum-
moned a rank and file employee and committeeman to his
office, locked out Atha and Williams from the office, ignored
efforts by Atha and Williams to enter the office, and then ne-
gotiated and announced a settlement of this dispute to the
rank and file employee and committeeman. Such conduct
plainly tends to undercut and undermine the Union’s rep-
resentational status and violates the Employer’s obligation to
bargain in good faith, in violation of Section 8(a)(5) and (1)
of the Act.4
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in com-
merce as alleged.
2. Charging Party Union is a labor organization as alleged.
3. Respondent Employer violated Section 8(a)(1) of the
Act by threatening its office employees with layoff and more
onerous working conditions if they selected the Union as
their collective- bargaining agent and by granting its office
workers a pay raise during the Union’s organizational cam-
paign.
4. Respondent Employer violated Section 8(a)(3) and (1)
of the Act by discriminatorily granting a pay increase and
laying off employee Therese Langen in an attempt to dis-
courage employees from engaging in protected union activi-
ties.
5. Respondent Employer violated Section 8(a)(5) and (1)
of the Act by bypassing the Union, the exclusive bargaining
agent of an appropriate unit of its employees described
below, and instead dealing directly with the unit employees,
by refusing to allow a Union representative to be present
during a discussion concerning the number of trucks which
had to be loaded per day by the unit employees. The appro-
priate unit is:
The employees of Respondent described in the National
Master Automobile Transportation Agreement of 1988,
including all drivers, yard employees, garage employees
and mounting and hookup employees, but excluding all
professional employees, guards and supervisors as de-
fined in the Act.
6. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such conduct and like or related conduct and to
post the attached notice. Respondent Employer has been
found to have violated Section 8(a)(3) of the Act by
discriminatorily laying off employee Langen. Respondent
Employer will therefore be directed to offer employee
Langen immediate and full reinstatement to her former job
or in the event her former job no longer exists to a substan-
tially equivalent job without prejudice to her seniority or
other rights and privileges, and make her whole for any loss
of earnings which she may have suffered by reason of her
unlawful layoff by making payment to her of a sum of
money equal to that which she normally would have earned
from the date of Respondent’s discrimination to the date of
its offer of reinstatement, less net earnings during such pe-
897KENOSHA AUTO TRANSPORT CORP.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
6 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
riod, with backpay to be computed as prescribed in F. W.
Woolworth Co., 90 NLRB 651 (1977), and interest as pro-
vided in New Horizons for the Retarded, 283 NLRB 1173
(1987). See generally Isis Plumbing Co., 138 NLRB 716
(1962). Further, Respondent Employer will be directed to
preserve and make available to the Board or its agents upon
request all payroll records and reports and all other records
necessary to determine backpay under the terms of this Deci-
sion and Order. And, Respondent Employer will also be di-
rected to expunge from its files any reference to the discrimi-
natory layoff of Langen found unlawful herein, in accordance
with Sterling Sugars, 261 NLRB 472 (1982).
Respondent Employer has been found to have also vio-
lated Section 8(a)(5) of the Act by not bargaining in good
faith with the Union. Respondent Employer will therefore be
directed to upon request bargain in good faith with the Union
as the exclusive bargaining agent of its employees in the ap-
propriate unit and if an understanding is reached embody that
understanding in a signed agreement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Kenosha Auto Transport Corporation, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its office employees with layoff and more
onerous working conditions if they selected the Union, Gen-
eral Teamsters, Sales & Services And Industrial Union,
Local No. 654, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen And Helpers Of
America, AFL–CIO, as their collective-bargaining agent and
granting its office workers a pay raise during the Union’s or-
ganizational campaign.
(b) Discriminatorily granting a pay increase and laying off
employees in an attempt to discourage employees from en-
gaging in protected union activities.
(c) Failing and refusing to bargain in good faith with the
Union as the exclusive bargaining agent of its employees in
the following appropriate unit by bypassing the Union and
instead dealing directly with the unit employees, by refusing
to allow a Union representative to be present during a discus-
sion concerning the number of trucks which had to be loaded
per day by the unit employees. The appropriate unit is:
The employees of Respondent described in the National
Master Automobile Transportation Agreement of 1988,
including all drivers, yard employees, garage employees
and mounting and hookup employees, but excluding all
profes- sional employees, guards and supervisors as de-
fined in the Act.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employee Langen immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent job without prejudice to her seniority
or other rights and privileges, and make her whole for any
loss of earnings which she may have suffered by reason of
her unlawful layoff, with interest, as provided in this Deci-
sion.
(b) Preserve and, on, request make available to the Board
or its agents for examination or copying all payroll records,
social security payment records, timecards, personnel records
and reports, as well as all other records necessary or useful
in analyzing and computing the amount of backpay, as pro-
vided in this Decision.
(c) Expunge from its files any reference to the discrimina-
tory layoff of employee Langen and notify her in writing that
this has been done and that evidence of this unlawful action
will not be used as a basis for future personnel action against
her.
(d) Upon request bargain in good faith with the Union as
the exclusive bargaining agent of its employees in the above
appropriate unit and if an understanding is reached embody
that understanding in a signed agreement.
(e) Post at its Springfield, Ohio facility copies of the at-
tached notice marked ‘‘Appendix.’’6 Copies of said notice,
on forms provided by the Regional Director for Region 9,
after being signed by Respondent’s representative, shall be
posted by Respondent immediately on receipt in conspicuous
places, including all places where notices to employees are
customarily posted, and be maintained for 60 consecutive
days. Reasonable steps shall be taken to ensure that notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date hereof what steps have been taken to comply.