Lamont's Service, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1973

204 N.L.R.B. 222 (N.L.R.B. 1973)

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lamont's Service, Inc. and General Drivers & Helpers
Union, Local No. 662, affiliated with the Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America . Case 18-CA-3485
June 18, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 9, 1973, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions, and the Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the ruling, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Lamont's Service, Inc., Ab-
botsford, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK , Administrative Law Judge: This
proceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended (herein called the Act), arises from
charges filed March 13, 1972 (and amended July 3, 1972),
by General Drivers and Helpers Union , Local No. 622,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America (here-
m called the Union ), against Lamont 's Service , Inc. (herein
called Respondent). Based on these charges a complaint
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the record
and find no basis for reversing his findings.
issued September 21, 1972, alleging that Respondent com-
mitted unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act. Respondent filed an answer admitting
some allegations of the complaint but denying others and
denying that it had committed unfair labor practices.
The pleadings present two threshold issues : (a)whether
Respondent is an employer within the meaning of the Act,
and (b) whether the Union is a labor organization within the
meaning of the Act. I find affirmatively on both questions.
The principal issue in the case is whether Respondent
discriminated against its employee LaVerne Shilts. The
complaint alleges , and the answer admits, that on January
11, 1972, the Respondent discharged Shilts and did not
thereafter reinstate him. The complaint alleges , and the an-
swer denies , that the discharge and subsequent failure to
reinstate were discriminatory. As indicated hereinafter, I
find that they were. The case was tried before me at Abbots-
ford, Wisconsin, on November 30, 1972.
Upon the entire record,' including my observation of the
witnesses and consideration of the briefs filed by the parties,
I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a Wisconsin corporation engaged in and
around Abbotsford, Wisconsin, as an intrastate contract
carrier of petroleum products, certificated by the Wisconsin
Public Service Commission, and in the retail and wholesale
sale of petroleum products. During the 12 months preced-
ing the issuance of the complaint it purchased and received
petroleum and other products valued in excess of $50,000
from other enterprises located in Wisconsin which received
those products directly from points located outside Wiscon-
sin. The evidence establishes that Respondent hauls petrole-
um products both for its own account and for the account
of others including large interstate concerns such as Phillips
Petroleum, Murphy Oil Co., and Great Northern Oil Co.
Respondent itself owns about 25 percent of the products it
hauls. Most of the cargo is loaded at one or another of four
bulk petroleum stations which are terminals for petroleum
pipelines. None of these bulk terminals are in Abbotsford.
Based on the foregoing, I find that Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act. Stemons Mailing Service, 122 NLRB
81; Pease Oil Company, 122 NLRB 344.
It. THE LABOR ORGANIZATION INVOLVED
The Union is an unincorporated association in which
employees participate and which exists for the purpose of
dealing with employers concerning rates of pay, hours of
work, and other conditions of employment. It is affiliated
with an international labor organization. It bargains collec-
tively with employers, is party to collective-bargaining
agreements with various employers, and in some instances
is certified by the Board as exclusive representative. I find
1 The General Counsel's motion to correct p 29, 1 18, of the transcript
herein by changing "was" to "wasn't" is hereby granted.
204 NLRB No. 36
LAMONT'S SERVICE, INC.
that it is a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Employment History of Shilts
LaVerne Shilts was employed by Respondent for 3 years,
from January 20, 1969 , until his discharge on January 11,
1972. He worked as a driver of a semi tank-trailer. During
the period of his employment Respondent owned two trac-
tors and three tank trailers .2 This equipment was operated
by Shilts, the regular driver, and by Malcolm Lamont,
Respondent's president, who drove part time.3 Until Janu-
ary 1, Malcolm's son, James, was also employed by Respon-
dent but apparently did not operate the semitractors.
Shilts was considered a good worker . He received no
complaints from Respondent , and in fact was praised for his
diligence.
B. Union Organizing Activity
In the course of his duties Shilts picked up cargo at four
bulk stations and delivered within a radius of 150 miles of
Abbotsford . He, as well as several drivers employed by
other small nonunion petroleum haulers , while picking up
cargo at bulk stations, frequently met and talked with union
drivers employed by some of the larger petroleum haulers
in the central Wisconsin area . The union drivers received
much higher wages and many more fringe benefits than the
nonunion men. When in late 1971 the union drivers received
an additional wage boost , it became a topic of general dis-
cussion among drivers loading at the bulk stations . Learning
of the union rates and realizing the disparity between them
and their own wages, Shilts and some other nonunion driv-
ers became interested in the Union. They contacted James
Novacek , union president, who arranged a meeting with
them for Sunday, January 9, 1972, at the Union's office in
Eau Claire, Wisconsin. At this meeting, attended by Shilts
and several other nonunion drivers, Novacek explained
union benefits. They all signed cards joining the Union and
authorizing it to represent them. Novacek told Shilts the
Union would send Respondent a letter requesting recogni-
tion . On January 11 Novacek by certified mail sent a letter
asking Respondent to recognize the Union as Shilt's repre-
sentative. Respondent received the letter January 20. The
question of Respondent's knowledge prior to that time of
his union activity is treated hereinafter.
C. News of Dissatisfaction
Sometime during the day of January 11, Malcolm
Lamont's wife , who acts as his secretary , received a tele-
phone call from a truckdriver (unnamed in the record) in
Chippewa Falls to the effect that Shilts was dissatisfied with
2 Respondent also leased some trucking equipment from Badger Truck
Lines, Inc., another corporation then controlled by the Lamont family The
extent to which this leased equipment was in use is not entirely clear.
3 It is not clear from the record how often Malcolm Lamont drove or when
or how frequently he associated with other drivers at the bulk terminals
223
his working conditions . After she advised Lamont of the
call, he drove the 54 miles to Chippewa Falls (where he was
going anyway to pick up a load ) and inquired at the Phillips
terminal about the alleged dissatisfaction of Shilts. Some-
one there confirmed that Shilts was dissatisfied with his
working conditions.
It was later that same day that Lamont without notice
discharged Shilts . On March 9 , 1972, in a Wisconsin Em-
ployment Relations Commission (hereinafter called
WERC) hearing, when Lamont was asked why he let him
go, he testified , "Well, I had been over to Chippewa that day
and I heard that he was dissatisfied with his working condi-
tions and we do not have anyone around our place that is
dissatisfied."
D. The Discharge
After working most of the day, on Tuesday, January 11,
Shilts returned to Respondent's premises in Abbotsford on
his last run with a full load. He was met by Malcolm La-
mont who helped him connect up the hoses for unloading
the tank-trailer. Lamont said he would like to see Shilts
inside . After completing the hook up of the hoses, Shilts
followed Lamont into his office. In the office Lamont said,
"I hear you're dissatisfied with your job." Shilts denied he
was and asked Lamont if he had received the letter (mean-
ing a letter from the Union). Lamont replied that he had
gotten no letter. Shilts testified that he did not think he used
the word "union" when he asked about the letter. However,
at the WERC hearing in March, Lamont admitted that
Shilts asked him if he had gotten a letter from the Union.
In the circumstances I find that Lamont understood that
Shilts was referring to a letter from the Union.
Although it was the middle of their peak season , was not
a regular payday, and Shilts had not entirely finished his
work, Lamont told him to fill in his timecard. Lamont then
computed and entered the amount of his pay on a check
which was otherwise already prepared, and threw the check
on the desk. To Shilts he appeared angry. Lamont said
something to the effect that this was one of the hardest
things he had ever done in his life; that he had treated Shilts
like one of his own kids; and he asked him, "Why did you
do it?" Shilts answered that he did not do it to hurt Lamont;
that he did not know it was going to turn out that way when
he did it. Lamont said he had to protect what was his. He
also said, "You're the best damn worker I ever had, but
that's it." And he pointed to the check on the desk. Shilts
asked him if he should finish unloading the tank truck, but
Lamont said no, he would do it himself.
Shilts then left and shortly thereafter telephoned Nova-
cek, giving him the news of his discharge. That evening
Novacek telephoned Lamont to ask why Shilts was dis-
missed and to protest it. Lamont refused to make any com-
ment.
E. Changes in Respondent's Business Structure
Respondent is a closely held family corporation. Mal-
colm Lamont is president. He and his wife are the principal
stockholders. Malcolm runs the business.
Respondent operates out of a gasoline service station run
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it which occupies part of a building leased from, and
owned by, Malcolm Lamont. Another corporation, Badger
Truck Lines, Inc. (herein called Badger), leases from Mal-
colm the rear portion of the building where it parks trucks.
The principal stockholder of Badger is now Malcolm's son
James; other stockholders include Malcolm's daughter and
her husband and another man, unrelated, who owns a single
share. All the men are truckdrivers. Badger's sole business
since its formation in 1957 has been the leasing of trucks to
Respondent.
For years after the formation of Badger, Respondent per-
formed its hauling by using its leased equipment . Between
1968 and 1970, Respondent acquired two tractor-trailer rigs
of its own (the equipment operated by Shilts and Malcolm),
and also apparently continued to use to some extent three
or four trucks leased from Badger.
Sometime prior to the end of 1971 Malcolm Lamont con-
templated altering Respondent 's business. As part of this
change, Respondent, as of January 8, 1972, sold its two
tractors (but not its tanker-trailers) to Badger. They have
since been included in the lease of equipment from Badger
to Respondent. The tractors continue to be used in
Respondent's business which operates as it did before inso-
far as the public is concerned. Shilts continued to operate
the equipment through January 11, although he was igno-
rant of the transfer . Since his discharge the equipment has
been manned by a driver supplied by Badger . Respondent's
customers have never been advised of any change. The
equipment makes the same runs as previously. Only
Respondent's name appears painted on the side of the cabs.
Respondent pays rental on the tractors by sharing the reve-
nue derived from hauling; 60 percent for Badger and 40
percent for Respondent.
According to his testimony in the WERC hearing, Mal-
colm Lamont made an unsuccessful effort to arrange a
place for Shilts in the new setup , and because he could not
work it out, he would in any case have had to dismiss him
shortly after January 11.
F. Discussion Regarding Discharge
The General Counsel's theory, first propounded in a post-
trial brief, is that reorganization of Respondent 's business
was a pretext for combating the Union and getting rid of
Shilts, and that the events of January 11 buttress that theo-
ry. Respondent generally defends on the ground that the
General Counsel has not sustained the burden of estab-
lishing by a preponderance of the evidence that the dis-
charge was for discriminatory reasons. Specifically,
Respondent claims there is no evidence of union animus on
its part and no evidence that it had knowledge of Shilt's
union activity. Respondent also argues that the record
shows affirmatively that he was discharged because his job
was abolished in a legitimate business reorganization.
At the time Malcolm Lamont fired Shilts on January 11,
he admittedly had information acquired earlier in the day
that Shilts was dissatisfied with his working conditions. He
opened the termination conference by stating he had heard
he was dissatisfied with his job. A little later he asked, "Why
did you do it?" Considering all the circumstances of the
case, I find these expressions of Lamont were euphemisms
for Shilts' union activity. See Angwell Curtain Company, Inc.
v. N. L. R. B., 192 F.2d 899 (C.A. 7, 1951). They warrant the
inference, and I find, that when he discharged Shilts he
knew of his union activity. At the hearing herein Lamont
denied that he knew Shilts had joined the Union. If that was
a denial of any knowledge of his union activity, I do not
credit him.
The discharge conversation also demonstrates that Shilts'
union activity was the reason he was fired. Discharge in that
manner necessarily discouraged membership in the Union.
It is immaterial and therefore no defense that he might have
been let go later for some other reason allegedly unrelated
to union activity.
This finding that he was discriminatorily discharged on
January I 1 is supported by additional circumstances which
lack other rational explanation, namely: that despite the
fact that Shilts was the best worker Respondent ever had,
he was fired without notice in the middle of the busy season,
in the middle of a pay period, before he had completed his
work on the day of discharge, and only 2 days after he had
joined the Union. A further supportive circumstance was
Lamont's unwillingness that evening to explain the dis-
charge to Novacek.
Respondent argues that the affirmative case is fatally
defective because there is no separate evidence of company
animus toward the Union. But that argument is misplaced
where, as here, the reason for the discharge is evident and
need not be inferred from the employer' s antiumon disposi-
tion.
With respect to the defense that Shilts was discharged in
the course of a reorganization which abolished his job, I find
that was patently not the case. According to Lamont, the
tractors had already been sold to Badger earlier in January.
Yet Shilts continued to man the equipment as an employee
of Respondent at least on January 10 and 11 (and possible
earlier) until the time he was fired. No business reason
required his dismissal on January 11 rather than some earli-
er or later time . On the other hand, a preponderance of the
evidence does indicate, and I find, that his union activity
caused Lamont to fire him at that time.
Regarding the General Counsel's theory that the sale of
the tractors to Badger was a pretext for combating union-
ism, I make no finding. I do not see resolution of that
question as necessary to a determination of the legality of
the discharge. In my view the present record is inadequate
to resolve Respondent's motives in selling its tractors and
leasing them back. Among other things, the extent of com-
pany knowledge prior to January 11 of Shilts union activity
is not explored sufficiently to warrant disposition of that
issue . Cf. N.L.R.B. v. Joseph Antell, Inc., 358 F.2d 880 (C.A.
1, 1966); but see also Wal-Mart Stores, Inc., 201 NLRB No.
35. If determination of these questions proves to be neces-
sary for remedy purposes, they may be dealt with in the
compliance stage of this proceeding.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I , above, have a close , intimate , and sub-
LAMONT'S SERVICE, INC.
stantial relation to trade , traffic , and commerce among the
several States. Those found to be unfair labor practices tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce and are unfair labor
practices within the meaning of Sections 8 (a)(3) and (1) and
2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) and engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging LaVerne Shilts on January 11, 1972,
and not thereafter reinstating him, Respondent discriminat-
ed in regard to his hire or tenure of employment to discour-
age membership in a labor organization , and thereby
committed , and is committing, unfair labor practices within
the meaning of Section 8(a)(3) and ( 1) of the Act.
4. Such unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act, I recommend that it cease and desist
therefrom and take affirmative action designed to effectuate
the policies of the Act. I also recommend that Respondent
offer to LaVerne Shilts immediate , full, and unconditional
reinstatement to his former job or , if that job no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights, privileges or working
conditions , and make him whole for any loss of earnings he
may have suffered as a result of discrimination against him
by paying him a sum of money equal to the amount he
would have earned from the date of his discharge on Janu-
ary 11, 1972, to the date Respondent offers him reinstate-
ment , less his net earnings during that period in accordance
with the Board's formula stated in F. W. Woolworth Compa-
ny, 90 NLRB 289, with interest thereon at the rate of 6
percent per annum as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716, and that it make records available to
Board agents in connection with compliance therewith. I
further recommend that Respondent post appropriate no-
tices.
Upon the foregoing findings of fact, concusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Lamont's Service , Inc., its officers , agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in General Drivers &
Helpers Union Local No. 662, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , or any other labor
organization , by discharging or by discriminating in regard
to the hire or tenure of employees or any term or condition
225
of their employment.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their right
to self-organization, to form labor organizations, to join or
assist a labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer LaVerne Shilts immediate, full, and uncondi-
tional reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights, privileges, and
working conditions, and make him whole for any loss of
earnings he may have suffered as a result of discrimination
against him in the manner set forth in the section hereto
entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all re-
cords, reports, and other document necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its place of business in Abbotsford, Wiscon-
sin, copies of the attached notice marked "Appendix." S
Copies of the notice on forms provided by the Regional
Director for Region 18, after being duly signed by its repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes.
5 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading , "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
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 having found, after a
trial, that we violated Federal law by firing LaVerne Shilts
because of his union activities:
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer LaVerne Shilts his old job and pay him
any wages he has lost, with interest.
WE WILL NOT discharge or discriminate against em-
ployees because of their union activities.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their right to self organization , to form labor organi-
zations, to join or assist a labor organization , to bargain
collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
Dated By
(Representative) (Title)
LAMONT'S SERVICE, INC
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , 316 Federal Building 110 South 4th
Street , Minneapolis , Minnesota 55401 , Telephone 612-725-
2611.