Liberty Homes, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1981

257 N.L.R.B. 1411 (N.L.R.B. 1981)

LIBERTY HOMES. INC.
Liberty Homes, Inc. and Chauffeurs, Teamsters,
Warehousemen and Helpers, Local No. 446, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 18-CA-6440
September 17, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1980, Administrative Law
Juge Thomas R. Wilks issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
Charging Party filed a memorandum answering
Respondent's exceptions. Respondent subsequently
filed a motion to reopen the record and for leave
to adduce additional evidence to which the Gener-
al Counsel and the Charging Party filed opposi-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge concluded that
certain statements and interrogations by Potts, Re-
spondent's dealer relations manager, in conversa-
tions with employees Ramker, Ploeckelman, and
Metz concerning conditions of employment and the
mistake it would be for the employees to seek
union representation, violated Section 8(a)(1) of the
Act. '
The Administrative Law Judge further conclud-
ed that Respondent violated Section 8(a)(3) and (5)
of the Act by subcontracting out the balance of its
over-the-road delivery operation, apparently rea-
soning that Respondent did not make any decision
on that matter until after the employees had desig-
nated the Union as their representative and in re-
taliation therefor. 2
' The record indicates that the employees accurately stated that they
were unaware of any union activity. Potts did not testify. The Adminis-
trative Law Judge "[aJccordingly . . . creditledJ the testimony of [the]
General Counsel's witnesses inasmuch as their testimony wsas not inher-
ently unbelievable, and their demeanor was sufficiently convincing " The
record shows that the employees' first organization meeting occurred at
the home of employee Paschke on Sunday, September 23 (inadvertently
referred to by the Administrative Law Judge as September 24)
'The Administrative Law Judge's rationale is ambiguous given his dis-
cussion of, and apparent reliance on. .L.R.B. v. Great Dane railr.
Inc.. 388 U.S. 26 (1967) We do not consider that decision germane
257 NLRB No. 169
Respondent in its exceptions contends, inter alia,
that, in assessing the evidence as to the 8(a)(3) and
(5) allegations, the Administrative Law Judge in
effect erred by not assigning weight to Respond-
ent's economic losses from its drive-away oper-
ation, and that he failed to address pertinent evi-
dence showing that Respondent's decision to dis-
continue its own portion of the delivery operation
was made before the employees concerned decided
upon union representation on September 23. We
find merit in these contentions.
At the hearing herein, the General Counsel
argued that "one of the very critical elements is the
time frame in which Respondent initiated inquiries
concerning the contracting out of its drive-away"
operation. 3 We agree with the General Counsel
that when Respondent initiated such inquiries is im-
portant. We conclude that the documentary evi-
dence fully supports Respondent's testimony that
its inquiries were begun several months before the
employees sought union representation, and that
Respondent continued to pursue that course of
conduct throughout the summer. In this connec-
tion, we note that, following a hearing in Case 18-
RC-12417, the Regional Director, on October 24,
1979, issued a Decision and Order in which he dis-
missed the Union's petition4 after concluding that
Respondent had made a final decision to subcon-
tract prior to the employees' seeking union repre-
sentation, and that it would therefore not effectuate
the policies of the Act to conduct an election. The
record herein shows that a number of documents
pertaining to Respondent's decision to subcontract
its drive-away operation were subpenaed in prepa-
ration for that representation proceeding (including
Resp. Exh. 2 herein, a bid dated March I from a
possible hauler), and that many were admittedly in
the possession of the Charging Party or the Gener-
al Counsel at the time of the hearing in this pro-
ceeding-some 8 months later. In our view, it is in-
conceivable that if either the General Counsel or
the Charging Party had deemed any of those docu-
ments to contain evidence favorable to their posi-
tion on the timing of the subcontracting they
would have failed to introduce them into evidence
herein. But neither sought to do so. We therefore
infer that they contain no evidence to support the
General Counsel's contentions.
While the Administrative Law Judge at one
point in his Decision recognized Respondent's
' This argument on timing arose in conjunction with Resp. Exh 2, a
response dated March I. 1979. from one of the vehicle haulers interested
in obtaining Respondent's business
'The Union's petition sought a unit of the employees whose organiz-
ing activities are reflected in this proceeding Respondcnts' production
and maintenance enlplosees at this location are separately represented
1411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mounting economic losses from the delivery oper-
ation (the operation produced a $10,000 profit in
1977, a $2,600 loss in 1978, and a $34,500 loss by
August 1979), he apparently did not apprehend the
evidence as substantiating Respondent's contention
that a primary reason for its increasing losses was
the rapidly escalating cost of maintenance ($54,000
by August 1979) due to the inadequacy of its gaso-
line-powered tractors to withstand the heavier
hauling that they were being required to perform.
Although not specifically addressed by the Admin-
istrative Law Judge, the basic factors contributing
to an increased demand on Respondent's vehicles
appear evident from the record. First, the weight
of many of Respondent's larger (14 feet by 70 feet)
mobile homes was being increased by design and
structural changes. Second-and perhaps more sig-
nificantly-in terms of output, the quantity of such
larger and heavier homes rose during the period in
question from 30 to approximately 50 percent of
Respondent's production at the location here in-
volved. 5
It appears, in fact, that the Administrative Law
Judge in arriving at his conclusions herein may
have substituted his own business judgment for that
of Respondent as reflected in his apparent criticism
of Respondent for not raising prices or delivery
charges to customers.
Finally, we note that the Administrative Law
Judge apparently failed to consider the evidence by
Bruce Beeman6 that he was told by Potts "by early
September" that Respondent was "definitely going
to close down its trucking operations," and that if
Barrett (a hauler Beeman worked for) "wanted to
5 As noted by the Administrative Law Judge, Division Manager Za-
brosky had initially recommended as an alternative to subcontracting out
the drive-away operation, the possibility of replacing existing gasoline-
powered tractors with diesel tractors-a step which the home office was
apparently unwilling to take because of the large increase in capital
outlay; i.e.. $30,(100 to $35,000 per diesel tractor versus approximately
$10,000 to $15,000 per gasoline-powered tractor. We note the testimony
of employees that, at the meeting between Respondent and the drivers
informing them of the final date that the trucks were to be taken off the
road. Zabrosky informed them that, although the trucks might be avail-
able for purchase if the employees desired to buy, he would advise them
against it inasmuch as he considered the gasoline-powered tractors not
heavy enough to make them a "good" buy. We further note that follow:-
ing the takeover of the balance of Respondent's drive-away operation in-
volved here, approximately 80 percent of the equipment used in hauling
Respondent's mobile homes was comprised of diesel tractors.
6 Beeman's testimony is contained in an affidavit secured by Respond-
ent. The affidavit states that Beeman would be unavailable to testify on
the date of the hearing as he would be out of the Statle at the time. Coun-
sel for the General Counsel initially objected to the receipt of the affida-
sit into evidence. However, when Respondent requested a continuance,
both counsel for the General Counsel and counsel for the Charging Party
preferred to have the affidavit received rather than a continuance to
secure testimony from Beeman in person The Administrative Law Judge
commented on the record that in his view "Beeman's testimony is cor-
roborative of the essence of Respondent's defense. The timing of the pro-
posal and so forth, is highly critical I would think that his testimony
should be adduced in this proceeding."
be considered we had better get our quotes in."'
Further, Zabrosky had frequently expressed to
Beeman his concern that gas-fueled tractors were
breaking down with the heavy loads, and that he
wanted only diesel tractors used. The evidence, of
course, is entirely consistent with the conclusions
reached by the Regional Director in the represen-
tation proceeding,8 and in our view compels the
conclusion that Respondent's decision to cease its
own portion of the delivery operation and to sub-
contract it out based on its mounting economic
losses had in fact already been made before the em-
ployees decided on September 23 to seek union
representation. Hence, we conclude that Respond-
ent was not obligated to bargain with the Union
over its decision to close."
Accordingly, we conclude that there was no dis-
crimination against employees to discourage union
membership in violation of Section 8(a)(3) and no
refusal to bargain concerning terms and conditions
of employment of drivers in violation of Section
8(a)(5). Therefore we dismiss the 8(a)(3) and (5) al-
legations of the complaint in their entirety. 10
' eeman confirmed this in. writing on September 13, and delivered a
submission which required "many hundreds of computations" to Re-
spondent on September 24.
a That representation case was dismissed because in "mid-September"
Respondent had reached a final decision to subcontract unit work. We
also conclude, contrary to the Administrative Law Judge, that Respond-
ent's taking delivery, early in the year, of trucks previously ordered by
the home office, installing a previously ordered gas tank to compensate
for difficulties in obtaining gasoline supplies, and equipping trucks with
replacement tires "do not proside a basis to find otherwise."
In noting above that the evidence herein is consistent with the Region-
al Director's dismissal in the representation proceeding, we have not,
contrary to our dissenting colleague, misplaced reliance on that decision
as "a proof' in the instant case We merely recognize that a basic thresh-
old issue in the two cases is essentially the same; i.e., whether Respond-
ent's basic decision to use haulers for the balance of its delivery work
was effectively made prior to the employees' deciding to organize in late
September. Nor does the fact that we reach the same ultimate conclusion
as the Regional Director in any way impinge on the General Counsel's
authority in processing unfair labor practice cases
, It appears that our dissenting colleague may be interposing his busi-
ness judgment for Respondent's in analyzing the legality of Respondent's
decision to use outside haulers in terms of whether Respondent adequate-
ly considered an impliedly desirable "possible resolution" which "could
have resulted in a retention of the employees and their bargaining repre-
sentative." That seems to us to somewhat miss the point of whether Re-
spondent's decision was arrived at. as we have found, before the advent
of any bargaining representative Moreover, his reliance on a lack of spe-
cific comparison in the record of delivery figures for different haulers
seems somewhat puzzling given that the documents n question were en-
tered into evidence primarily to show when Respondent's inquiries were
undertaken-which the General Counsel asserted was a critical issue-
and that Respondent previously had permission to delete the specific fig-
ures and the many pages of supporting quotations from the exhibits
(indeed, the General Counsel subsequentl objected when Respondent of-
fered to later submit the attachments to the original quotations). Finally,
our colleague in declaiming what he terms Zabrosky's "steadfast refusal"
to subcontract seems to forget that the decision was not Zabrosky's to
make, and that Zahrosky had recommended such action several months
beforehand.
"' It is uncontested that Respondent offered to bargain with the Charg-
ing Party (given a showing of majority status) over the effects of its deci-
sion to cease its portion of the delivery operations, but that such offer
Continued
1412
LIBERTY HOMES, INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Liberty Homes, Inc., Dorchester, Wisconsin, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concern-
ing their own and other employees' union activi-
ties.
(b) Warning employees that joining a union will
not benefit them and may result in the loss of over-
the-road driving jobs.
(c) 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 which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at its facility in Dorchester, Wisconsin,
copies of the attached notice marked "Appendix.""'
Copies of said notice, on forms provided by the
Regional Director for Region 18, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 18,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
MEMBER JENKINS, dissenting:
I think it clear that Respondent's subcontracting
of its trucking operations violated Section 8(a)(3)
and (5) of the Act.
The basic facts are undisputed and show that Re-
spondent's drive-away or delivery operation earned
a $10,000 profit in 1977, lost $2,600 in 1978, and
suffered a cumulative loss of $34,500 by August
1979. In late 1978 or early 1979, because of the
was clearly rejected. In view of our result herein, we find it unnecessary
to reach Respondent's motion to reopen the record to submit additional
evidence of mounting losses on its Dorchester trucking operations during
1980.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted bh
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing all
Order of the National Labor Relations Board'"
rising costs of maintenance and operation of its gas-
oline-powered trucks, Respondent initiated inquir-
ies concerning the feasibility of subcontracting out
the operation and pursued those inquiries through
late autumn 1979. During the summer of 1979, it
also considered, but decided against, replacing half
of its truck fleet with diesel-powered vehicles be-
cause of the expense of acquiring diesel power.
Meanwhile, in June 1979, its drivers began discuss-
ing the possibility of union representation, and, in
mid-July 1979, driver Ramker told Respondent's
dealer relations manager, Potts, of the drivers' dis-
satisfaction with employment conditions and that
they would "go union" if improvements were not
made. Potts' response was that such a move would
be a "bad mistake." Although the employees did
not engage in any further union or concerted activ-
ity until September 21, 1979, Potts believed other-
wise and, in July, interrogated driver Ploeckelman
as to whether he planned to attend a union meet-
ing, interrogated driver Metz on July 27 or August
3 as to whether Metz had heard of any union meet-
ings to be held that night, and then requested him,
"as a personal friend," not to attend union meet-
ings.
Concurrent with these transgressions, Beeman,
who represented a carrier with which Respondent
was negotiating, stated in an affidavit that he was
told by Division Manager Zabrosky, Potts' imme-
diate supervisor, "by early September" that Re-
spondent was "definitely going to close down the
trucking operation" because of economic factors
and "we had better get our quotes in." Respondent,
however, neither closed nor received a bid from
Beeman in September, and, in early September,
Potts continued on his unlawful course by asking
Ramker if he had heard anything about the Union
and whether he knew who initiated the union
movement.
On September 21, the employees met with
Hansen, the Union's business agent and, on Septem-
ber 24, armed with union authorization cards ex-
ecuted by all of the drivers, Hansen presented a re-
quest for recognition and bargaining to Zabrosky.
According to Zabrosky's discredited testimony. he
stated that he told Hansen that the Union was "a
dollar short and a day late," and that Respondent
had decided to subcontract out the operation to a
common carrier. According to Hansen's credited
testimony, Zabrosky stated that he was investigat-
ing the possibility of subcontracting the drivers'
work and was, at that time, gathering information
as to costs and negotiating with contract carriers.
On the following morning, despite the asserted fi-
nality of Respondent's decision, Potts summoned
Metz to his office and berated him for not telling
1413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Potts about the September 21 union meeting, inter-
rogated him as to whether he had signed a union
card, and, when told that he had, responded that
he, Potts, did not believe that Respondent "would
go along with joining a union," that it did not
benefit Metz to join the Union, that Respondent
"would probably take the trucks off the road," and
that the least senior driver Metz "could have
moved up the ladder to become a higher driver on
the totem pole."
As of this time, Respondent admittedly still was
negotiating with three contract carriers for a spe-
cial rate. Although one carrier, MTS, had submit-
ted a rate quote to Respondent on March 1, 1979,
it did not have Interstate Commerce Commission
authority to service Respondent's area. In May,
Barrett, another carrier, refused to provide Re-
spondent with a special rate. In August, Zabrosky
offered to award all of Respondent's delivery work
to Morgan, the third carrier involved, if Morgan
would grant Respondent a special rate, which it re-
fused to do. On August 27, 1979, MTS submitted a
second bid which was rejected by Zabrosky, who
continued to search for a special lower rate. Nei-
ther Barrett nor Morgan had yet submitted a
quoted contract price. It was not until after the
Union's bid for recognition that Respondent re-
ceived bids from those two carriers, and it was not
until after November 5, 1979, that Zabrosky com-
pared the submitted bids and engaged a carrier,
thereby apparently abandoning his year-long search
for a special contract rate. Despite his search for
that special lower rate, however, Zabrosky admit-
tedly knew that the rate charged by a carrier is
controlled by the Interstate Commerce Commis-
sion. He apparently also knew that, while that rate
was inflexible, carriers may not necessarily charge
the same fee for delivering the same size product
to the same location because of the manner in
which they compute mileage for that delivery. Za-
brosky, however, was not seeking this type of ac-
commodation. His efforts were spent in trying to
obtain a special lower rate.
Beeman's affidavit, then, is almost the sole bit of
evidence on which my colleagues rely for their
conclusion that Respondent's decision to subcon-
tract out the delivery work was made final prior to
the Union's September 24, 1979, request for recog-
nition. Beeman stated Zabrosky told him "by early
September" that Respondent was "definitely going
to close down its trucking operation . . . [and] we
had better get our quotes in" because Zabrosky
wanted only diesel tractors used. That statement, at
best, is ambiguous as to timing and self-serving as
to motivation. Further, it fails to show that, "by
early September," Respondent was any closer to a
final decision to subcontract out than it had been at
any time since it initiated its quest for a special rate
in early 1979. Moreover, inasmuch as Beeman was
so told by Zabrosky, the statement is no more de-
finitive as to timing or economic motivation, or en-
titled to more weight, than Zabrosky's discredited
testimony that a final decision had been made prior
to the request for recognition. I agree with the Ad-
ministrative Law Judge that it is highly improbable
that a final decision would have been made prior to
the acquisition of all essential data.
Throughout their opinion, my colleagues have
cited the Regional Director's decision in Case 18-
RC-12417 and the proceedings leading to that de-
cision as indicating that a final decision had been
reached prior to the advent of the Union. Never-
theless, they contend that their repeated references
to that determination are not as "a proof," but
merely in recognition "that a basic threshold issue
in the two cases is essentially the same." This re-
peated reference seems to me to indicate otherwise,
and I think it plain that the Regional Director's de-
cision has no relevance to this proceeding. The Re-
gional Director did not have before him the facts
present in the instant proceeding, and, under the
statute, the General Counsel has the sole authority
to initiate unfair labor practice proceedings which
then must be determined ab initio from the facts
therein presented.
The General Counsel's possession of some of the
documents on which the Regional Director may
have relied does not, contrary to my colleagues,
create an obligation on the part of the General
Counsel to introduce them into evidence as part of
his case-in-chief, nor create the inference that they
do not support his position if he does not. My col-
leagues' conclusion presupposes that those docu-
ments have evidentiary value in this proceeding.
But, even if they have, economic data assertedly
supportive of its positions is peculiarly within Re-
spondent's knowledge, and the burden is on Re-
spondent, not the General Counsel, to produce
such evidence or else sustain an adverse infer-
ence. 2 The majority effectively imposes on the
General Counsel the burden of establishing Re-
spondent's defense. More pointedly, the adverse in-
ference drawn by the majority flies in the face of
the record, which shows that Respondent did in-
troduce into evidence copies of the same or like
documents, and that it undermined its defense by
blocking out all of the pertinent economic data
which could have been supportive of its position.
Thus, we are left with a record which shows that
' Cf. Suburban Ford. Inc., 248 NLRB 364 (1980): S. Regis Paper Cotn-
parn, 247 NLRB3 745 (1980).
1414
LIBERTY HOMES, INC.
Respondent failed to present any specific evidence
concerning (1) the cost factors attributable to main-
tenance and operation of its trucks; (2) its delivery
rates as compared with the rates charged by
common carriers; (3) whether the need or desire to
be competitive played any role in its decision to
subcontract; (4) whether it was more efficient or
expeditious to use one form of delivery rather than
another; and (5) the delivery rates quoted by the
contract carriers or how those rates compared with
one another. In short, Respondent failed to adduce
any detailed and specific evidence that it, in fact,
would reduce its delivery costs by utilizing a con-
tract carrier, or that it even had reason to believe
that common carriers were more economical at the
time of its refusal to recognize the Union. And this
is true even if, as my colleagues assert, Respondent
"previously had permission" to delete the specific
information needed to support its economic de-
fense, or that the documents were introduced into
evidence "primarily to show that Respondent's in-
quiries were undertaken." Neither reason cures the
defect. Respondent's defense is further undermined
by its transfer of some of its too-expensive-to-run
trucks to other of its plants where they are utilized
to deliver similar products, as to which Respondent
has failed to establish any substantial difference in
weight or other characteristics from those pro-
duced at this plant.
Nevertheless, my colleagues argue that the deci-
sion to subcontract out was not motivated by un-
lawful considerations because the employees them-
selves were not aware of, and did not engage in,
any union activity until after a final decision had
been reached. But my colleagues have not stated
precisely when that asserted decision was reached,
and there is no evidence that it had been reached
by mid-July when the employees discussed the pos-
sibility of becoming unionized and so notified Re-
spondent; there is no indication from the evidence
herein, except for Zabrosky's discredited conclu-
sion, that the decision had been reached before the
Union requested recognition; and my colleagues
have failed to explain either the necessity for, or
the impact of, Respondent's unlawful threat to
"take the trucks off the road" following the
Union's request for recognition if, in fact, a final
decision had been made previously.
In view of Zabrosky's steadfast refusal to sub-
contract unless and until he obtained a special rate
from one of the carriers-which he never got-it is
fairly obvious that he either could not or would
not have made a final decision to subcontract until
he either knew what rate he could get, or got the
special rate he was looking for. And even then, in
processing his inquiries for a special rate, he was
under a misapprehension that the carriers could, in
fact, or would, grant him a special rate. Zabrosky's
conduct-and there is nothing in this record to in-
dicate that he was not acting with the full knowl-
edge and consent of Respondent-indicates that
Respondent had made a final decision not to sub-
contract unless it obtained a special rate, and that it
eventually made the final decision to subcontract in
November when it abandoned its quest for a spe-
cial lower rate and accepted a proffered bid. Con-
trary to my colleagues, I have not forgotten that
Zabrosky recommended a partial subcontracting
several months earlier. The facts are, however, that
Respondent neither subcontracted nor made a final
decision to do so at that time, and Zabrosky's rec-
ommendation then that it do so has no bearing on
the central issue of when a final decision to subcon-
tract was reached.
The majority accuses the Administrative Law
Judge of substituting his business judgment for that
of Respondent because he noted that Respondent
did not consider raising its prices as a means of
solving its problem. In point of fact, however, he
did not use his own business judgment; he merely
pointed to an important economic fact which was
missing. Nevertheless, Respondent's failure to
adduce evidence in this regard is suspect and has a
bearing on determining motivation, particularly be-
cause a possible resolution of Respondent's prob-
lem by that method could have resulted in a reten-
tion of the employees and their bargaining repre-
sentative. Absent Respondent's consideration of the
method, we are again left with Zabrosky's conclu-
sionary discredited statement. These analytical ob-
servations concern an obvious evidentiary deficien-
cy and hardly, contrary to my colleagues, amount
to a substitution of my business judgment for that
of Respondent.
Considering the plethora of evidence establishing
a prima facie case and the paucity of rebuttal evi-
dence, I find no warrant for my colleagues' com-
ments that the Administrative Law Judge's ration-
ale is ambiguous and his reliance on Great Dane
Trailers, Inc., supra, misplaced. Respondent's con-
duct did seriously invade the employees' rights.
Accordingly, I would find, in agreement with the
Administrative Law Judge, that the General Coun-
sel adduced sufficient evidence to establish a prima
facie case that the drivers' union activities were a
motivating, if not the sole, factor which formulated
the decision to subcontract, and that Respondent
failed in its burden of showing otherwise and thus
violated Section 8(a)(3) and (5) of the Act.
Unlike the Administrative Law Judge, however,
I do not regard the record as demonstrating that
Respondent would not suffer a burdensome hard-
1415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship if required to resume the discontinued oper-
ation, and, therefore, I would not order restoration
of the status quo ante. Instead, I would require Re-
spondent to bargain over the effects of the decision
to close the operation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coercively interrogate em-
ployees about their own or other employees'
union activities.
WE WILL NOT warn employees that joining
a union will not benefit them and will result in
the termination of over-the-road driving jobs.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
LIBERTY HOMES, INC.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge: Pursu-
ant to unfair labor practice charges filed by the Chauf-
feurs, Teamsters, Warehousemen and Helpers, Local No.
446, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (herein the Union), against Liberty Homes, Inc.
(herein the Respondent), and a complaint issued by the
Regional Director for Region 18, a hearing was held in
Medford, Wisconsin, on June 10, 1980. The issues litigat-
ed were whether the Respondent violated Section 8(a)(1)
of the Act by various acts of interference with its em-
ployee Section 7 rights, and whether the Respondent
violated Section 8(a)(5), (3), and (1) of the Act by refus-
ing to recognize and bargain with the Union and by sub-
contracting the work of its transport drivers who had
designated the Union as their bargaining agent.
On or about July 25, 1980, all parties filed briefs. On
the entire record in this case including my observation of
the witnesses, their demeanor and in consideration of
briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Indiana corporation having its of-
fices and principal place of business in Goshen, Indiana,
is engaged in the manufacture, wholesale sale, and distri-
bution of mobile homes in plants located in various
States including a mobile home manufacturing plant at
Dorchester, Wisconsin. During calendar year 1979, a
representative period, the Respondent in the course and
conduct of its operations sold and distributed goods
valued in excess of $400,000 of which goods valued in
excess of $50,000 were sold and shipped from the Re-
spondent's Dorchester, Wisconsin, plant to customers lo-
cated outside the State of Wisconsin. During the same
period the Respondent purchased and received at its
Dorchester, Wisconsin, plant goods and materials in
excess of $50,000 directly from points located outside the
State of Wisconsin.
It is admitted and I find that the Respondent is and has
been at all times material herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION
It is admitted and I find that the Union is and has been
at all times material herein a labor organization within
the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent's production and maintenance em-
ployees at its Dorchester plant have been represented by
another labor organization since 1972. That relationship
has not been entirely tranquil. See Liberty Homes, Inc.,
216 NLRB 1102 (1975). The Respondent employs over-
the-road truckdrivers at Dorchester to transport its
mobile homes to customers in Wisconsin, Iowa, Idaho,
North Dakota, South Dakota, Michigan, and Minnesota.
Those drivers have not been represented by any labor
organization. In 1973 the Union attempted to organize
the drivers and sought recognition as their bargaining
agent. The Respondent, however, subcontracts the deliv-
ery of its products to a common carrier. The Union filed
an unfair labor practice charge which resulted in the is-
suance of a complaint which was resolved by a settle-
ment agreement in Case 18-CA-3867.' The settlement
agreement provided that the Respondent would, upon
request, bargain with the Union concerning the effects of
the 1973 subcontracting upon the drivers. Apparently
'The Respondent adduced into evidence the charge, complaint, and
settlemenl agreement.
1416
LIBERTY HOMES, INC.
there was full compliance with the settlement agreement,
as there was no suggestion to the contrary raised in the
proceeding. That settlement agreement was not subse-
quently revoked by the Regional Director.
The chief operational manager at the Respondent's
Dorchester plant is Wisconsin division manager, William
C. Zabrosky. Subordinate to Zabrosky is dealer relations
manager of the Wisconsin division, Tom Potts. Since
1972, Zabrosky possessed the ultimate authority for the
operations of the Dorchester plant. Potts was directly re-
sponsible for the supervision of the drivers. Other man-
agers were responsible for various other phases of the
operation, e.g., the plant manager was responsible for
production. Zabrosky confers with Potts on a daily basis.
Potts advises Zabrosky of any problems that he encoun-
ters. Zabrosky in turn informs his superiors at the corpo-
rate headquarters, in Goshen, Indiana, of the existence of
problems.
Subsequent to 1973, the Respondent resumed its deliv-
ery operations. In 1975, Kenneth Ploeckelman, who had
been employed by the Respondent as a driver from 1970
to 1973, was rehired. He was the only driver, of the
eight drivers terminated in 1973, to return to the employ
of the Respondent. In 1975 three drivers were utilized.
In 1977 the over-the-road driver complement rose to
nine and remained at that number until November 1979.
The use of contract carriers was always used by the
Respondent as a supplement to its own staff of over-the-
road drivers. The use of contract carriers occurred on a
monthly basis as the Respondent sought to clear its yard
of an undelivered overflow. One of those contract carri-
ers, Morgan Drive Away Inc., had been the recipient of
the 1973 subcontracted work. Several of the Respond-
ent's drivers performed services for Morgan after 1973.
There was no explanation as to why the Respondent re-
sumed its own delivery operations in 1975. Apparently it
was to the Respondent's advantage to do so. The drivers
remained unrepresented by a union.
B. The 1979 Union Drive
The General Counsel adduced the testimony of six
drivers, Peter Marchinek, Kenneth Ploeckelman, James
Paschke, Loren J. Metz, Dennis Gabrovic, and Merlin
Ramker. Included in the testimony concerning the union
organizing effort, there are accounts of conversations
with Manager Tom Potts, which were uncontradicted.
Potts, for no proffered reason, did not testify. Accord-
ingly, I credit the testimony of the General Counsel's
witnesses inasmuch as their testimony was not inherently
unbelievable, and their demeanor was sufficiently con-
vincing.
Marchinek was hired as a driver in February 1979. In
June 1979 he and Ramker while together on a delivery
engaged in a discussion concerning the possibility of
seeking union representation. In various occasions in July
and August he discussed individually with Ramker.
Ploeckelman, and Pashke the subject of possible union
representation. These discussions occurred on the Re-
sponden's premises near the driver's room. Ploeckelman
initially expressed his reluctance to seek union represen-
tation and cited his prior termination in 1973 after the
last union effort.
Ramker, who was hired by Potts in February 1979, en-
gaged in a conversation with Potts in mid-July. The con-
versation occurred at a bowling alley after Potts had
picked up Ramker from a location where his truck had
become inoperable. On the way back they stopped at the
bowling alley for refreshment. During the conversation
Ramker told Potts of the drivers' dissatisfaction with cer-
tain employment conditions and said that if improve-
ments were not made that the drivers would "go union."
Potts responded that, if they did seek union representa-
tion, such move would be a "bad mistake."
In Juiy 1979, prior to Ploeckelman's discussion with
Marchinek concerning union representation, Potts and
Ploeckelman engaged in a conversation wherein Potts
asked him if he were planning to attend a union meeting.
Ploeckelman responded that he knew nothing about it.
The record is silent as to any union meeting in July.
Later Ploeckelman told Marchinek about Potts' interro-
gation, when Marchinek raised the subject of unioniza-
tion with him.
Metz was hired on July 17, 1979, by Potts with whom
he had been previously acquainted. Potts solicited Metz
for the driver's job. On July 27 or August 3, on a Friday
night Potts telephoned Metz at his home and asked him
whether he had heard of any union meetings to be held
that night. Metz said that he did not. Potts then asked
him, "as a personal friend" not to attend union meetings.
Metz responded that he was not interested in union rep-
resentation inasmuch as he had intentions of entering into
business himself and did not intend to continue as a
driver "that long."
In early September 1979, Ramker engaged in a second
conversation with Potts after he was summoned to Potts'
office at 5:30 a.m. to commence his duties. As they were
alone Potts asked him whether he had heard anything
about the Union. Ramker said that he had not. Potts
asked him whether he knew who had initiated the union
effort. Ramker answered that he knew nothing about it.
On or about September 21, Ramker telephoned Union
Business Agent Jerome Hansen and requested a meeting
between Hansen and the Dorchester drivers. Hansen
agreed and a meeting was set for Sunday, September 24,
at Paschke's centrally located home. Thereafter all nine
drivers were invited and all but Metz attended. The
meeting lasted beyond midnight. Drivers Gabrovic, Kell,
Marchinek, Ploeckelman, Paschke, Ramker, Schoelzel,
and Strey executed valid written union authorization
cards, thereby designating the Union as their bargaining
agent. On the morning of Monday, September 24, Metz
also executed a valid union authorization card and sub-
mitted it personally to Hansen at the Respondent's Dor-
chester plant where Hansen waited to confront Za-
brosky. On September 24, accordingly, the Union had
been designated the bargaining agent by all of the Re-
spondent's over-the-road drivers.
On the morning of September 24, after Metz had ex-
ecuted his union authorization card, Business Agent
Hansen met with Zabrosky in the Dorchester plant
office. Hansen announced that the Union had been desig-
nated the collective-bargaining agent by the drivers and
he requested recognition of the Union and bargaining.
1417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zabrosky responded that he lacked authority to extend
recognition and that such authority resided with the cor-
porate office in Goshen, Indiana. Zabrosky also told
Hansen that he was "a dollar short and a day late." Ac-
cording to Zabrosky he told Hansen that a decision had
been made to subcontract the work of the drivers to a
common carrier. Hansen testified that Zabrosky stated
that he was investigating the possibility of subcontracting
the drivers' work and that he was at that time gathering
information as to costs and negotiating with three con-
tract carriers, Mobile Transport Systems, Inc. (herein
MTS); Barrett Mobile Home Transport, Inc., (herein
Barrett); and Morgan Drive Away, Inc., (herein
Morgan); but that he had not as yet executed a contract.
Hansen accused Zabrosky of repeating a "tactic" utilized
in 1973 and asked whether the drivers would be "fired."
Zabrosky responded that he preferred to use the word
"terminated." Zabrosky said that he would file a repre-
sentation petition with the Board and forward a formal
letter to the Respondent. By letter dated September 24,
addressed to Zabrosky, the Union demanded recognition
and bargaining to commence on September 24. By letter
dated September 26, Zabrosky responded:
Your letter dated September 24 requesting recogni-
tion as exclusive representative of our drivers was
received yesterday. The request that we meet with
you on September 24 obviously cannot be acceded
to, and, for the reasons we discussed, we must re-
spectfully decline your request for recognition.
On the morning of September 25, Metz was notified to
come to Potts' office. He met Potts in his office alone.
Potts told him that as a friend he should have given him
information concerning the union meeting. Potts asked
Metz whether he had signed a union card and when he
had signed it. Metz responded that he had signed a card
on the day before at or about 10 a.m. Potts said that he
did not think that the Respondent "would go along with
joining a union," that it did not benefit Metz to join the
Union, and that the Respondent "would probably take
the trucks off the road." He told Metz that he "could
have moved up the ladder to become a higher driver on
the totem pole." Metz was the lowest in seniority.2
On September 26, the Union filed a representation pe-
tition in Case 18-RC-12417. A hearing was held on Oc-
tober 12, during which the Respondent took the position
that the petition ought to be dismissed because a final de-
cision had been made to subcontract the drivers' work.
Testimony was adduced. During the course of the hear-
ing, the Respondent offered to recognize the Union upon
a demonstration of majority status in the form of authori-
zation cards and offered to bargain with the Union there-
after concerning only the effects of the subcontracting of
2 The Respondent argues that Metz' testimony is inherently unbeliev-
able because Metz admitted that Potts was aware that Metz intended to
go into business for himself and that he had placed his house for sale and
intended to move to another area. In the absence of contradictory testi-
mony I credit Metz who appeared to be an objective. unbiased witness.
possessed of no motivation to falsify testimony concerning his friend
Potts. Potts may very well have intended to persuade Metz to stay on as
an employee. It is not clear that Metz could not have retained employ-
ment at a new residence.
unit work. The Union declined the limited offer of rec-
ognition and insisted upon full recognition and bargain-
ing.
On October 15, Zabrosky summoned the drivers to a
meeting and announced that they would be terminated as
of November 5, because their work was to be subcon-
tracted to a common carrier. Zabrosky stated that the
trucks used by the drivers might be offered for sale to
them or that they might make arrangements to drive for
the contract carriers. He told them that he did not know
which contract carrier would be awarded the work.
On October 24, the Regional Director issued a Deci-
sion and Order wherein he concluded that the Respond-
ent in mid-September 1979 had indeed reached a final de-
cision to subcontract the unit work and he accordingly
dismissed the petition. The Regional Director, of course,
did not have before him the issue of the Respondent's
motivation for the subcontracting. In any event he was
precluded from litigating an unfair labor practice in a
representation proceeding, inasmuch as the General
Counsel has the sole authority to initiate unfair labor
practice proceedings and the Regional Director was not
then acting as an agent of the General Counsel. Times
Square Stores Corp., 79 NLRB 361, 364-365 (1948): Cato
Oil and Grease Company, 242 NLRB 10, fn. 3 (1979). On
or about November 2, the nine drivers were terminated.
The 14 tractor-trucks utilized by them were sent to other
mobile home manufacturing plants owned and operated
by the Respondent in three other States. Of those 14
trucks, 3 were sold thereafter and 1 was demolished.
Zabrosky testified as to the circumstances leading up
to the Respondent's decision to subcontract the delivery
of mobile homes. Zabrosky, however, did not make that
decision. David O'Connor, executive vice president at
the Respondent's Indiana headquarters, made the deci-
sion. He did not testify. Zabrosky testified that he made
certain recommendations to O'Connor. Zabrosky's testi-
mony concerning the underlying economic conditions
was generalized and unsupported by underlying docu-
mentation except for correspondence with potential sub-
contractees. According to Zabrosky he first considered
subcontracting of the "haul away" operation in late 1978
or early 1979 because of the rising costs of the operation
primarily due to more frequent malfunctioning of the
motors and transmissions of the Respondent's gasoline-
powered fleet of trucks. Zabrosky concluded that al-
though his gasoline-powered vehicles could adequately
haul Respondent's products, they could not sustain the
increased wear due to a gradually increasing size and
weight in the product. He testified that increased cost of
maintenance adversely affected the profitability of the
delivery phase of the operation. In 1977, the receipts
from the charge to the customer for delivery service
contributed $10,000 in profits to the overall operation. In
1978, the delivery operation lost $2,600. At the end of
August, the cumulative loss reached $34,500, i.e., after all
costs including wages, fuel maintenance, and fleet depre-
ciation were subtracted from the flat rate delivery cost
charged to the customer. Zabrosky's testimony did not
give specific dollar amounts for each cost factor nor did
it estimate what proportion of the costs were attributable
1418
LIBERTY HOMES, INC.
to maintenance. No testimony was adduced as to what
proportion of these costs were attributable to the rising
cost of gasoline in the summer of 1979. No data was sub-
mitted nor any specific comparison were made in his tes-
timony with respect to the maintenance costs in 1978.
The income from the delivery operations was derived
from a flat rate charged to the customer. The customer
had no option to select its own means of delivery. Like
the price for the finished product, the delivery charge
was determined by the Respondent's Goshen headquar-
ters. The delivery charge was thus simply added to the
cost of the product. Historically the delivery charge was
calculated upon such factors as en route costs, tolls, mile-
age, and other costs. In the past the delivery charge to
the customer was the same regardless of whether the Re-
spondent utilized a contract carrier or its own vehicle.
Therefore, over several years, Zabrosky made continuing
efforts to obtain a lower charge by the contract carriers
with respect to the delivery cost charged to the custom-
er. Zabrosky testified that he made recommendations to
the Goshen headquarters as to the amount upon an eval-
uation of the costs charged by competitor mobile home
builders, the wages of drivers, and his other costs. He
did not state what his recommendations were. However,
he testified that the headquarters "never" followed his
recommendations. He did testify, however, that his supe-
riors usually determined to increase those delivery rates.
Zabrosky failed to testify that at any time from late 1978
until the date of the subcontracting did he recommend or
even consider that the delivery rate charged to the cus-
tomer be increased. There is no testimony as to how the
Respondent's delivery rates compared to the competi-
tor's delivery charges. There is no explicit testimony that
the desire or need to be competitive played any role in
the decision to subcontract. There was no testimony as
to whether it was more efficient or expeditious to use
one form of delivery rather than another form. Zabrosky
testified that he was unaware of how the Respondent's
delivery charge compared to the charge a common carri-
er would levy upon a customer for the same delivery.
From late 1978 or early 1979, and continuing through
the summer of 1979, Zabrosky testified that he attempted
to obtain a special rate from contract carriers. He had
been aware that the rate charged by a contract carrier is
controlled by the Interstate Commerce Commission, but
he reasoned that perhaps a special rate could be obtained
if he promised to assign all his business to one carrier. As
explained by Jerry Heiring, of Morgan, in his testimony
as a witness for the Respondent, each contract carrier
must charge the same rate to all its customers for the
same size product delivered at the same distance, but
each carrier's rates vary somewhat though not substan-
tially, for competitive reasons, from one and another.
However, Heiring testified that although rates may be
approximately the same, each carrier will not necessarily
charge the same fee for a delivery of the same size, be-
cause each carrier may differ from one and another in
the way in which they compute the mileage for that de-
livery. Thus different carriers may submit different quo-
tations of costs for the same size product to be delivered
to the same location. Zabrosky, however, engaged in an
effort to obtain a special lower rate for the Respondent.
On March 1, 1979, MTS submitted a written quotation of
rates to be charged for the Respondent. However, MTS
did not have authority from the ICC to service the Dor-
chester area and its bid was premised upon an assump-
tion that it could obtain such authority.
On May 14, 1979, a Barrett representative visited the
Dorchester plant and discussed the assumption of the Re-
spondent's delivery operation. This was one of several
such conversations. However, Barrett declined to pro-
vide the Respondent with a special rate.
Heiring testified that in August he paid a routine visit
to the Dorchester plant and that Zabrosky offered to
award all the Respondent's delivery work to Morgan in
return for a special rate. According to Heiring this was a
continuation of efforts by Zabrosky in early 1979 and
through that summer. Heiring refused to agree to a spe-
cial rate. Heiring testified further that Zabrosky's efforts
to obtain a special rate were not new, and that Zabrosky
had periodically since 1975 attempted to obtain a special
rate from him including a period of time when Heiring
was employed by Barrett. Heiring testified that each time
Zabrosky was insistent upon a special rate but each time
Heiring was adamant in his refusal.
On August 27, MTS submitted a second written bid
setting forth proposed rates, conditioned upon approval
of the ICC for MTS to service Dorchester. Zabrosky
testified that MTS was the only carrier to offer him a
special rate but that he felt that it was insufficient and he
therefore continued in his efforts to obtain a better rate.
No evidence was submitted as to the amount of the rates
that these carriers offered. On September 3, Barrett sent
a letter to the Respondent wherein it promised to submit
a quotation or estimate of costs on actual shipments. This
was the first response from Barrett. On September 27,
after the Respondent declined recognition of the Union,
Barrett submitted to the Respondent those cost estimates.
On October 8, Heiring, of Morgan, forwarded to the Re-
spondent a written expression of interest in assuming the
Respondent's delivery work and it submitted therewith,
pursuant to Zabrosky's request, quotations of delivery
costs for the Respondent's various products to a variety
of locations. No special rate was offered by Barrett or
Morgan.
Although these quotations of different contract carri-
ers may have varied, there is no evidence adduced of the
amounts of the quoted costs, nor evidence as to how
they compared with one and another. There was no evi-
dence submitted by the Respondent as to whether it had
entertained a specific objective as to the delivery charge
sought from the common carriers, or whether it had de-
cided upon a delivery charge which would be economi-
cially benefical in comparison with the cost entailed by
its own operation. Although Zabrosky requested that
these carriers submit written quotations, in his testimony
he conceded that he could have obtained the same infor-
mation by telephone, and that he ultimately entered into
no written contractual agreement to use the exclusive
services of any one carrier. He testified that after No-
vember 5, 1979, he compared the written quotation sub-
mitted, and that he thereafter engaged the services of
that carrier which had submitted the lowest quotation
1419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the delivery of a particular mobile home for that spe-
cific delivery point. No evidence was submitted as to the
comparison of these quoted estimates to the Respond-
ent's actual past costs. Although it is implied throughout
the Respondent's argument that it was guided by eco-
nomic motivations there is no conclusive detailed and
specific evidence adduced that the Respondent, in fact,
reduced its delivery costs by utilizing the contract carri-
ers, or that it had reason to believe that the common car-
riers were more economical at the time it refused to rec-
ognize the Union.
With respect to the precise date that the Respondent
decided to terminate its delivery operations, Zabrosky's
testimony is confused and inconsistent. In direct examina-
tion Zabrosky testified that he considered the exclusive
use of subcontractees in early 1979, but that in the
summer of 1979 he also considered cutting his mainte-
nance costs by the acquisition of diesel-powered trucks
which, although initially costly, entail far less wear and
maintenance. Accordingly, he requested sometime in the
summer of 1979 of the Respondent's Vice President
Deck in Goshen, Indiana, that a feasibility study be made
for the acquisition of diesel trucks and that thereafter on
some unspecified date he received a response from Deck
that such a move would be "horrendously" expensive.
Zabrosky testified that a gasoline tractor costs about
$5,000 whereas an equivalent diesel costs about $35,000.
No specific evidence was adduced as to what data the
Respondent possessed prior to the subcontracting, as to
the cost of leasing diesel trucks. Zabrosky testified that
he requested such a study several weeks prior to this
hearing.3 No specific evidence was adduced as to an
analysis of the reduction in maintenance costs as an
offset to the initial capital investment in diesel tractors.
No evidence was submitted as to the Respondent's inabil-
ity to absorb the capital investment in diesel tractors.
However, despite the "horrendous" nature of the ex-
pense of acquiring diesel power, Zabrosky testified on
direct examination that he made a twofold recommenda-
tion to his superiors: (I) that they provide him with a
fleet of diesels or (2) they authorize him to subcontract
the delivery operation.4 In direct examination he testified
that he was notified by Vice President O'Connor on
August 15 of the decision to subcontract the delivery
work to a common carrier. In cross-examination he con-
ceded that at the representation proceeding he testified
that the decision was made in mid-September. He ex-
plained that at the representation hearing he had testified
"cold" and without refreshing his recollection with re-
cords and that he was in error when he so testified in
October 1979, barely 60 days after the decision was pur-
portedly made.
Further in cross-examination Zabrosky testified that he
had not only recommended sometime in the summer of
1979 that the delivery work be terminated, but that he
started making such recommendations in March and con-
tinued to make such recommendation at "every opportu-
nity." When reminded of his prior testimony Zabrosky
3 Testimony concerning the acquisition of such information subsequent
to the alleged unfair labor practice was excluded as irrelevant.
' In cross-examination he testified that he had recommended that only
one half of the fleet be replaced with diesels.
then testified that he coupled his recommendations with
an alternative recommendation that only half of his fleet
need be replaced by diesel tractors. He was silent as to
his superiors' responses, if any, to these earlier recom-
mendations.
Thus the evidence reveals that the Respondent did in
fact consider the subcontracting of its driveaway oper-
ations, and did communicate with possible subcontractees
and did seek special rates in return for an exclusive sub-
contractual arrangement in the spring of 1979, and
throughout the summer of that year. However, it also
contemplated the replacement of half its fleet with diesel
trucks as a means of combating the rising costs of main-
tenance. Surely it must also have considered the possibil-
ity of raising its delivery charges. However, it is also ap-
parent that no final decision was made until after the Re-
spondent acquired knowledge of the union organizing
discussions among its employees and after Potts became
suspicious that union meetings were being held and com-
menced his interrogations and his monitoring of the em-
ployees' increasing interest in the Union. I do not credit
Zabrosky's testimony that he was not aware of the em-
ployees' union sympathies until Hansen's September 24
visit. Potts was actively involved in the process of gath-
ering data in reference to the possibility of total subcon-
tracting. He directly supervised the drivers and daily re-
ported any problems to Zabrosky. Clearly, as his conver-
sations with employees reveal, he considered union orga-
nization of the drivers to be a matter of concern. 5 It is
inconceivable that he did not report his suspicions to Za-
brosky or to Vice President O'Connor. I conclude that
the Respondent was fully aware of the renewed desires
of its employees for union representation before it finally
decided to subcontract their work.
Furthermore, there is additional evidence that the con-
tinuation of in-house delivery was considered as equally
a viable prospect as subcontracting in early 1979 and into
the summer months. Two new gasoline-powered tractors
were acquired in the spring of 1979. In the summer
months a second gasoline storage tank of 10,000-gallon
capacity was installed which doubled the fuel storage ca-
pacity for the gasoline-powered trucks. 6 Also four trucks
were equipped with complete sets of new radial tires de-
spite the Respondent's past practice of using recapped
tires for some of the wheels. It is apparent that the Re-
spondent's economic situation was not such as to pre-
clude it from making capital investments in the Dorches-
ter haul away operations prior to the Union's demand for
recognition.
I do not credit Zabrosky's testimony that a final deci-
sion was made on August 15. I do not credit his testimo-
ny that he told Hansen that a final decision had been
made. I credit Hansen that Zabrosky had told him that
the Respondent was still gathering data as of September
24, and that it was only considering the possibility of
I Had a final decision to subcontract been made Potts surely would
have been aware of it and accordingly the prospective organization of his
drivers would have been only of academic interest to him. At no time did
he tell the drivers that a decision had been made.
i The record is silent as to whether these tanks can also accommodate
diesel fuel.
1420
LIBERTY HOMES, INC.
subcontracting up to the date of his confrontation. Za-
brosky was inconsistent in his testimony which as a
whole was generalized, vague, and conclusionary. Za-
brosky's demeanor was hesitant and uncertain. Further-
more, as of September 23, Zabrosky had not been suc-
cessful in his efforts to obtain the special rate that he felt
would be satisfactory. The proposed MTS rates were un-
satisfactory. Moreover, Zabrosky did not know whether
MTS even applied to the ICC for authority to service
the Dorchester area. The other carriers refused a special
rate and had not yet submitted actual quotations. It is im-
probable that a final decision would have been made
prior to the acquisition of all economic data. According-
ly, I conclude that no decision had been made until the
Respondent became aware of its drivers' union activities
and the Union had demanded recognition.
The Respondent argues that the decision to subcon-
tract was known to the drivers prior to their union ef-
forts and that is what motivated them to seek representa-
tion. All drivers who testified asserted that they were
first aware of the decision to subcontract after they had
executed their union authorization cards. However,
Ramker testified in response to a series of questions on
cross-examination as to what Hansen discussed with the
drivers at a meeting with them on September 29. He was
asked whether Hansen told them about Zabrosky's refer-
ence to the subcontracting. He responded:
That's old news. We knew that was going to
happen. I mean if you take the trucks off some-
body's going to haul them away for them.
However, it is not clear when this became "old news,"
and how it was obtained, or whether it was merely
Ramker's subjective conclusion based upon an awareness
of Potts' threat to Metz on September 25 that the Re-
spondent would not "go along" with the Union but
would instead "take the trucks off the road." Thus
Ramker's testimony is not supportive of the Respond-
ent's contention that a final decision to subcontract had
already been made prior to September 24. At the very
most it may indicate that the drivers had become aware
of the Respondent's consideration of the possibility of
subcontracting, and were thus motivated to seek union
representation prior to the finalization of such a decision.
However, I credit the testimony of the drivers that as of
September 24 they were unaware of any decision to sub-
contract their work.
B. Conclusions
1. Interrogations-warning
In July, Potts interrogated Ploeckelman as to whether
he planned to attend a union meeting. On July 27 or
August 3, Potts interrogated Metz by telephone as to
whether he heard about any union meeting and asked
him not to attend any meeting. In early September,
Potts, in his office, interrogated Metz again as to his
awareness of union activities, and as to the identity of
the employee who initiated union organizing efforts. On
September 25, Potts summoned Metz to his office and re-
proached him for not reporting information as to the
union activities of fellow employees, asked him whether
he had signed a union card, and warned him that it was
against his interest to join the Union because the Re-
spondent would not tolerate union representation of the
drivers but would rather terminate its delivery oper-
ations.
During these interrogations of employees concerning
their own and their coworkers' union activity that pre-
ceded the September 24 demand for recognition, no
valid purpose existed for such interrogation. During all
the interrogation no valid purpose was conveyed to the
employees, and no assurances against reprisals were
given to the employees. Some of the interrogations oc-
curred at the situs of managerial authority. One of the in-
terrogations was accompanied by a threat of economic
reprisal. Accordingly, I conclude that each of the fore-
going interrogations by the Respondent's manager and
agent, Tom Potts, was coercive and constituted a viola-
tion of Section 8(a)(1) of the Act. N.L.R.B. v. Camco,
Inc., 340 F.2d 803, 804 (5th Cir. 1965), cert. denied 382
U.S. 926; Paceco, a Division of Fruehauf Corporation, 247
NLRB 1403 (1980).
Furthermore, by Potts' warning to Metz that if he
joined the Union it would not benefit him and would
result in the loss of the drivers' jobs, the Respondent vio-
lated Section 8(a)(1) of the Act. Unimedia Corporation,
235 NLRB 1561, 1569 (1978). 7
2. Termination of operation
The Respondent's animosity toward its employees' or-
ganizational activities is evident from its coercive interro-
gations and the threat of economic reprials. S A decision
to terminate the work of the drivers occurred after they
had sought union representation, after the Respondent
had monitored the drivers' growing interest in the
Union, and in the context of expressed animosity toward
their union activities. The drivers were unaware of any
decision to subcontract their work at the time they desig-
nated the Union as their bargaining agent. Thus, to all
outward appearances the Respondent had engaged in its
normal functions, purchased new trucks, tires, and gaso-
line facilities, and then, as it had in 1973, terminated its
delivery services after the drivers selected a union as
bargaining agent. The only conclusion to be drawn by
the drivers as well as other employees at Dorchester and
employees throughout the Respondent's various plants is
that the Dorchester drivers were punished because they
had attempted to unionize, and that the Respondent sub-
contracted their work to avoid bargaining with the
Union at Dorchester as Manager Potts had warned
driver Metz.
Ordinarily motivation is determinative of whether Sec-
tion 8(a)(3) has been violated. The Supreme Court has
stated in N.L.R.B. v. Great Dane Trailers, Inc.:
' The fact that Metz may have been a friend of Potts does not detract
from the coercive nature of the threat and interrogation. Quemelco. Inc.,
223 NLRB 470 (1976); Florida Steel Corporation. 224 NLRB 45 (1976).
I do not rely upon the presettlement conduct of 1973 nor the fact that
a settlement %%as effected as the settlement agreement was never revoked
and no evidence of motivation was adduced as to the 1973 shutdown of
trucking operations
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some conduct, however, is so "inherently de-
structive of employee interests" that it may be
deemed proscribed without need for proof of an un-
derlying improper motive. Labor Board v. Brown,
supra at 287; American Ship Building Co. v. Labor
Board, supra at 311. That is, some conduct carries
with it "unavoidable consequences which the em-
ployer not only foresaw, but which he must have
intended" and thus bears "its own indicia of intent."
Labor Board v. Erie Resistor Corp., supra at 228,
231. If the conduct in question falls within this "in-
herently destructive" category, the employer has
the burden of explaining away, justifying or charac-
terizing "his actions as something different than
they appear on their face," and if he fails, "an unfair
labor practice charge is made out." Id., 228. And
even if the employer does come forward with
counter explanation for his conduct in this situation,
the Board may nevertheless draw an inference of
improper motive from the conduct itself and exer-
cise its duty to strike the proper balance between
the asserted business justifications and the evasion
of employee rights in light of the Act and its
policy. 9
The Court further stated that, "If it can reasonably be
concluded that the employer's discriminatory conduct
was 'inherently destructive' of important employee
rights, no proof of an antiunion motivation is needed and
the Board can find an unfair labor practice even if an
employer introduces evidence that the conduct was moti-
vated by business considerations." °
Herein, the Respondent by its coercive conduct has
given its employees the impression that it has decided to
terminate its Dorchester trucking operations because of
the Dorchester drivers' union activities. By its own con-
duct, the Respondent has created a situation whereby,
regardless of actual motivation, the subcontracting of
unit work has necessarily become inherently destructive
of employee rights. Under such circumstances, the
burden of proving that the sole motivation for its con-
duct was economic must rest upon the Respondent. Sagi-
naw Aggregates, Inc., 191 NLRB 553, 555 (1971); Allied
Mills, Inc., 218 NLRB 281, 289 (1975); cf. Smyth Manu-
facturing Company, Inc.; Beacon Industries, 247 NLRB
1139 (1980).
Furthermore, the General Counsel has adduced suffi-
cient evidence to support an inference that the drivers'
union activities were at least a motivating, if not sole,
factor in the formulation of the final decision to subcon-
tract the work of the drivers. Accordingly, the burden
shifted to the Respondent to demonstrate that it would
have subcontracted the drivers' work in the absence of
the union activity. Wright Line, a Division of Wright Line,
Inc., 251 NLRB 1083 (1980).
The Respondent herein has not only failed to demon-
strate that the elimination of the drivers' jobs would
have occurred in any event, it also failed to demonstrate
that it was guided in part by economic motivations. At
best the Respondent adduced generalized testimonial evi-
9 388 U.S. 26, 33-34 (1967).
' Id., 34.
dence that it had experienced a rising maintenance cost
and a loss of profits in the haul away operation and that
it had considered subcontracting as one of two alterna-
tive courses of action prior to the union organization of
its drivers. As noted above, a third alternative also exist-
ed: raise the delivery charge of its product. Certainly the
Respondent had found it advantageous and desirable to
perform its own delivery work inasmuch as it had re-
versed its 1973 decision and resumed its haul away oper-
ation in 1975. There is no evidence that the fees paid to
the common carriers had not risen since 1975. Moreover,
the very trucks that were deemed to be too expensive to
operate were transferred to other of the Respondent's
plants and continued to be utilized at those plants to de-
liver its products. No convincing, probative evidence
was submitted that at the time of the decision to subcon-
tract the Respondent had before it full and complete data
which revealed that subcontracting was more economi-
cal and effective than a continuation of its haul away op-
eration. I conclude that the employees' protected activi-
ties were the sole factor which motivated the Respond-
ent, and that it subcontracted the work of the drivers be-
cause they joined, supported, or assisted the Union and
to discourage them from engaging in such activities or
other mutual aid or protection and, thus, violated Section
8(a)(3) and (1) of the Act.
3. The refusal to bargain
As found above, the Union, as of September 24, was
designated collective-bargaining representative by all of
the Respondent's over-the-road drivers. The Respondent,
while not admitting the appropriateness of the driver
unit, explicitly stated at the hearing that it had no objec-
tion to the appropriateness of such unit.
The Board has held that a union need not be bound to
represent the most appropriate unit, but rather it has con-
cluded that the Act mandates only that the unit be an ap-
propriate unit. Morand Brothers Beverage Co., et al., 91
NLRB 409 (1950), enfd. 190 F.2d 576 (7th Cir. 1951).
Based upon the record, I conclude that a unit of all full-
time and regular part-time over-the-road drivers em-
ployed by the Respondent and operating at its Dorches-
ter, Wisconsin, facility, excluding office clerical employ-
ees, professional employees, production and maintenance
employees, all other employees, guards, and supervisors
as defined in the Act, is a unit appropriate for purposes
of collective bargaining.
The Respondent, therefore, refused to recognize and
bargain with the majority representative of an appropri-
ate unit of over-the-road drivers and terminated the jobs
of all members of the bargaining unit for the purpose of
evading its bargaining obligations.
The Supreme Court has held in N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), that an employer
violates Section 8(a)(5) of the Act when it refuses to rec-
ognize and bargain upon demand with a union whose
majority status is established by valid authorization cards
when the contemporaneous unfair labor practices of the
employer are likely to destroy the union's majority and
seriously impede the election process. The Board has
held, citing the Gissel decision that a violation of Section
1422
LIBERTY HOMES, INC.
8(a)(5) occurs "whether the unfair labor practices trig-
gering the finding that the employer was under an obli-
gation to bargain occur before, at the same time, or after
the actual refusal to bargain." Pilot Freight Carriers, Inc.
and BBR of Florida, Inc., 223 NLRB 286 (1976). The Su-
preme Court has stated:
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining order,
then such an order should issue. [Gissel, 395 U.S. at
615-615.]
Under the guidelines as set forth by the Supreme
Court, the Board has concluded that a bargaining order
is appropriate even under circumstances where the unfair
labor practices of the employer were not extensive with
respect to frequency or number of unfair labor practices
committed, but where because of the nature of the unfair
labor practice and its circumstances, e.g., a single threat
to close down a plant or the granting of benefits within a
small unit, it would have been unlikely to have conduct-
ed a fair election. C & T Manufacturing Company, 233
NLRB 1430 (1977); Crago Gear & Machine Works, 236
NLRB 539 (1978); see also Unimedia Corporation, 235
NLRB 1561 (1978), involving critically timed discrimina-
tory layoffs of employees.
The foregoing described unlawful interrogation, a
managerial warning of termination of delivery operations
in a small unit susceptible of the dissemination of such
harmful influence, and the discriminatory discharge of the
entire unit of drivers constitute conduct which is egre-
gious, and which manifests an inevitable long-term effect.
The Respondent's pervasive reaction to its employees'
desires for union representation reveals a strongly en-
trenched antipathy. It is most probable that if an election
were directed among the reinstated drivers that the Re-
spondent would resume its unlawful conduct. Moreover,
the severity of its unfair labor practices herein clearly
tend to undermine the majority status of the Union and
impede the election process. Because of the lasting effect
of and substantial probability of the repetition of unfair
labor practices I conclude that the holding of a fair elec-
tion is a futility. Accordingly, I find that the Respondent
on September 24 breached its obligation to recognize and
bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act and that an issuance of a bargaining
order is warranted.
I further find that thereafter the Respondent breached
its bargaining obligations and violated Section 8(a)(5) and
(1) of the Act by notifying the over-the-road drivers on
October 15 that their work would be subcontracted and
by unilaterally subcontracting the work of the over-the-
road drivers on November 5, 1979, without prior bar-
gaining with the Union.
CONCLUSIONS OF LAW
1. Liberty Homes, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Teamsters, Warehousemen and Helpers,
Local No. 446 affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their own and other employees' union activities, the Re-
spondent has violated Section 8(a)(1) of the Act.
4. By warning employees that joining the Union will
not benefit them and it will result in the loss of over-the-
road driving jobs, the Respondent has violated Section
8(a)(1) of the Act.
5. By subcontracting its over-the-road operations and
terminating the employment of its drivers, Dennis D.
Gabrovic, Roger C. Kell, Peter J. Marchinek, Loren J.
Metz, Jimmy L. Paschke, Kenneth F. Ploeckelman,
Merlin J. Ramker, Dennis D. Schoelzel, and Arthur B.
Strey because they joined, supported, or assisted the
Union and to discourage them from engaging in such ac-
tivities or other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
the Respondent has violated Section 8(a)(3) and (1) of
the Act.
6. All full-time and regular part-time over-the-road
truck drivers employed by the Respondent and operating
out of the Respondent's Dorchester, Wisconsin, facility,
excluding office clerical employees, professional employ-
ees, production and maintenance employees, all other
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
7. Since September 23, 1979, the Union has been and is
the collective-bargaining representative of the Respond-
ent's employees in the unit found appropriate.
8. By refusing to recognize and bargain with the
Union as the collective-bargaining representative of its
employees in the appropriate unit on or after September
24, 1979, by unilaterally informing the drivers employed
in the above unit, on October 15, 1979, that their work
would be subcontracted, and by unilaterally subcontract-
ing the work of the aforesaid drivers on November 5,
1979, without bargaining with the Union concerning the
decision to subcontract that work, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I recommend that the Respondent be ordered to cease
and desist from its unfair labor practices and post an ap-
propriate notice.
I have found that the Respondent discriminatorily ter-
minated its over-the-road drivers and subcontracted their
work, on an ad hoc basis, to common carriers. The ap-
propriate remedy is reinstitution of its over-the-road de-
livery operations and reinstatement of the drivers. This is
in accord with the policy of the Board that, with respect
to discriminatory conduct, "the restoration of the status
quo ante is the proper remedy unless the wrongdoer can
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrate that the normal remedy would endanger its
continued viability." R & H Masonry Supply, Inc., 238
NLRB 1044 (1978). See also Hood Industries, Inc. and its
wholly owned subsidiary, B & K- Transportation, Inc., 248
NLRB 597 (1980). In the instant case the Respondent
merely transferred its trucks to its other plants where
they continued in use except for three that were sold
thereafter and one that was demolished. There is no evi-
dence in this record that the restoration of the status quo
ante would entail a threat to the Respondent's economic
viability or constitute a burdensome hardship. Accord-
ingly, I recommend that the Respondent be ordered to
reinstate its over-the-road truckdriving operations at its
Dorchester plant and reinstate to their former positions
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, Dennis D.
Garbovic, Roger C. Kell, Peter J. Marchinek, Loren J.
Metz, Jimmy L. Paschke, Kenneth F. Ploeckelman,
Merlin J. Ramker, Dennis D. Schoelzel, and Arthur B.
Strey, and shall make whole all of them for any loss of
earnings they may have suffered by reason of the dis-
crimination against them. Any backpay found to be due
shall be computed in accordance with a formula set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), with
interest thereon, to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). I
It will be further recommended that the Respondent
be ordered to bargain upon request with the Union as
the exclusive bargaining representative in the appropriate
unit concerning wages, hours, and other conditions of
employment, including subcontracting of unit work, and
if any understanding is reached embody such understand-
ing in a signed agreement.
In view of the egregious and pervasive nature of the
unfair labor practices engaged in by the Respondent, I
recommend a broad remedial order. Hickmott Foods,
Inc., 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]
" See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
1424