M & J Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1974

214 N.L.R.B. 592 (N.L.R.B. 1974)

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & J Trucking Co., Inc. and Local Freight Drivers, pervisors as defined in the Act.
Local Union No. 208, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers and, in the event an agreement is reached, embody
of America . Case 21-CA-12135 such understanding in a signed agreement."
November 4, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On April 17, 1974, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding.' Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions, as modified,' of the Administrative Law
Judge and to adopt his recommended Order, as mod-
ified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, M &
J Trucking Co., Inc., Commerce and Riverside, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order as modified:
1. Delete paragraph 1(e), and reletter paragraph
1(f) as 1(e).
2. Substitute the following paragraph for para-
graph 2(b) of the Order:
"(b) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all the employees in the following appropriate bar-
gaining unit with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment:
"All truckdrivers and mechanics employed by
Respondent at its facilities located at 4600 She-
lia Street, City of Commerce, California, and
5001 Pedley Road, Riverside, California; ex-
cluding all other employees, office clerical em-
ployees, professional employees, guards, and su-
3. Substitute the attached notice for the notice at-
tached to the Decision of the Administrative Law
Judge.
i This case was consolidated for hearing on objections to the election in
Case 21-RC-13365, which was conducted pursuant to an agreement for
consent election The Administrative Law Judge severed the representation
case and remanded it to the Regional Director for Region 21, and that
proceeding is not before the Board
2 Respondent contended that 8 of 20 authorization cards were invalid
because they were obtained by means of representations that they were to
be used for an election However, we note that the record contains no
evidence of statements to the card signers that the cards would be used
solely for an election We note, additionally, that the cards state unambigu-
ously that the cards are for representation purposes. Consequently, like the
Administrative Law Judge, we find that all 20 cards were proper expressions
of support for representation purposes N LR B v Gissel Packing Co, Inc
395 U S 575, 606-608 In reaching that conclusion, we find it unnecessary
to rely upon the final sentence of fn 49 in the Administrative Law Judge's
Decision
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule 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 exam-
ined the record and find no basis for reversing his findings
J
We agree with the Administrative Law Judge that a bargaining order is
appropriate herein as a part of the remedy However, in accordance with the
views they expressed in Steel-Fab, Inc, 212 NLRB 363 (1974), Chairman
Miller and Member Penello do not adopt the Administrative Law Judge's
finding of an 8(a)(5) violation upon which he predicated the Order Instead,
they rely solely on the serious and extensive 8(a)(1) and (3) violations com-
mitted by the Respondent as requiring the granting of such a bargaining
order to remedy these unfair labor practices Accordingly, they adopt all of
the conclusions of law of the Administrative Law Judge except par 7 thereof
Member Fanning dissents from the dismissal of the 8(a)(5) finding of the
Administrative Law Judge, and the failure to adopt the corresponding con-
clusion of law, for the reasons stated in his dissent in Steel-Fab, Inc , supra
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 opportunity to
present evidence and state their positions, the National La-
bor Relations Board has found that we have violated the
National Labor Relations Act, 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 representative of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion
To refrain from the exercise of any such activities.
214 NLRB No. 63
M & J TRUCKING CO., INC.
WE WILL NOT lay off or otherwise discriminate
against any employee for joining or supporting Local
Freight Drivers, Local Union No. 208, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or any other union.
WE WILL NOT question you about your membership
or activities in the above-named Union, or any other
union.
WE WILL NOT threaten you with economic reprisals,
including closing our business and laying off the least
senior employees, if you support the above-named
Union, or any other union.
WE WILL NOT tell you that we have laid off employ-
ees because a union has engaged in an organizational
campaign.
WE WILL NOT in any other way interfere with, re-
strain, or coerce you in exercising the rights guaran-
teed by the National Labor Relations Act.
WE WILL offer to reinstate, if we have not already
done so, the employees named below to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without any loss of seniority or
other rights previously enjoyed, and WE WILL reim-
burse them for any loss of earnings suffered because
of their layoff, together with 6-percent interest.
Richard Babb
Arthur Bazan
James Brockway
John Brockway
John Daley
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All truckdrivers and mechanics employed by Re-
spondent at its facilities located at 4600 Shelia
Street, City of Commerce, California, and 5001 Ped-
ley Road, Riverside, California; excluding all other
employees, office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
M & J TRUCKING CO., INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
consolidated hearing in these cases held on January 24, 25,
29, and 30, 1974, is based upon unfair labor practice
charges filed by Local Freight Drivers, Local Union No.
208, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America on September 17,
1973, and upon objections to conduct affecting the results
593
of a representation election filed on September 18, 1973. A
complaint issued in the unfair labor practice proceeding on
November 9, 1973, on behalf of the General Counsel of the
National Labor Relations Board, herein called the Board,
by the Regional Director of the Board, Region 21, who, on
November 16, 1973, issued an order consolidating the
Union's objections to conduct affecting the results of the
representation election with the aforesaid unfair labor
practice case for hearing before an Administrative Law
Judge.
The complaint as amended at the hearing alleges that M
& J Trucking Co., Inc., herein called the Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor Rela-
tions Act, herein called the Act. Respondent filed an an-
swer to the complaint in which it denies committing the
alleged unfair labor practices.
The Union's objections to conduct affecting the results
of the representation election, in substance, allege that the
Respondent engaged in conduct which interfered with the
holding of a free and fair election and constitutes grounds
for setting aside the election.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
M & J Trucking Co., Inc., the Respondent, a California
corporation, is engaged in the business of hauling general
freight by truck from its places of business located in Com-
merce and Riverside, California. In the course and conduct
of its business operations, it annually performs services val-
ued in excess of $50,000 for customers located within the
State of California, which customers annually sell and ship
goods valued in excess of $50,000 directly to customers
located outside the State of California. I find Respondent
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Local Freight Drivers, Local Union No. 208, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
The ultimate issues litigated are whether, in laying off
five-named employees, the Respondent was motivated by
its animus against the Union, threatened employees with
economic reprisals if they supported the Union, and ques-
tioned employees about their union activities and sympa-
thies. Also involved is whether the Respondent engaged in
the type of conduct sufficient to set aside a representation
election lost by the Union and, if so, whether in the cir-
cumstances of this case an appropriate remedy is an order
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring the Respondent to recognize and bargain with
the Union as the employees' exclusive bargaining represen-
tative.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent, a trucking company, picks up and de-
livers for various business enterprises in Southern Califor-
nia. It has been operating since 1959 under the direction of
its president and principal stockholder Max Menkus. The
Respondent's vice president, the president's son, is Joel
Menkus. Its general manager is Dale Holybee.
The Respondent's employees are not represented by a
union and in 1970, when it came to President Menkus'
attention that several of the drivers were considering
unionization, Menkus made it clear that he was emphati-
cally opposed to the unionization of his business. President
Menkus, at that time, assembled all of the employees and
told them that he was the only boss; he did not want a
union and if a union came in, he would close the doors. He
advised the employees that if any of them favored union
representation that they should terminate their employ-
ment.'
Despite President Menkus' warning several of the
Company's drivers, unhappy about their wages, in August
1973 2 visited the Union. On August 9, drivers James
Brockway, his two sons, John Brockway (herein called
"Jackie") and Thomas Brockway, and James Brockway's
brother John Brockway (herein called "Uncle Jack"), with
fellow drivers John Daley and Edwin Gaudette, went to
the Union's office and spoke to Union organizer Eddie
McKiernan. McKiernan answered their questions, ex-
plained the benefits of unionization, and gave them union
authorization cards and literature to distribute to their fel-
low employees. The employees scheduled another meeting
with McKiernan for the following week on August 15.
On August 15, the group of employees who had initially
met with union organizer McKiernan, plus driver Arthur
Bazan, met with McKiernan at the Union's dispatch hall.
The employees had succeeded in soliciting 20 of the
Company's 38 drivers and mechanics to sign union author-
ization cards which they turned over to McKiernan. The
Union, in turn, on August 20 by letter notified the Respon-
dent that it represented a majority of its employees, de-
manded recognition as the employees' exclusive bargaining
representative, offered to prove its majority status through
a check of the authorization cards in its possession, and
requested a meeting to negotiate a collective-bargaining
agreement. Respondent did not answer this letter. Also, on
August 20, the Union filed with the Board a representation
petition in Case 21-RC-13365 asking for an election
among the Respondent's employees. On August 27, the Re-
'President Menkus' warning to the employees in 1970, as described
above, is based on a synthesis of the credible testimony of employees Rich-
ard Babb, Arthur Bazan , "Jackie" Brockway and James Brockway, who
impressed me as more trustworthy and reliable than Max Menkus, whose
version of the above-described episode I reject
2
All dates hereafter, unless otherwise specified, refer to 1973
spondent and the Union , with the approval of the Board's
Regional Director for Region 21, entered into an agree-
ment for consent election wherein it was agreed, among
other things , that a secret ballot election would be conduct-
ed by the Board on September 17 to determine if the
Respondent's truckdrivers and mechanics desired to be
represented by the Union. The election was held as sched-
uled. Of the approximately 38 employees eligible to vote,
19 voted against union representation , 18 voted for the
Union and 1 ballot , having been challenged , was not
opened . In short, the Union lost the election.
B. The Interference, Restraint, and Coercion
The evidence presented by the parties in connection with
this section of the Decision is in sharp conflict on virtually
every material point. The General Counsel's witnesses, a
substantial number of whom were employed by the Re-
spondent at the time they testified, impressed me in man-
ner and bearing-demeanor-as being more trustworthy
and reliable witnesses than Max Menkus, Joel Menkus,
and Dale Holybee, the witnesses called by Respondent.
Nor was the various testimony of the General Counsel's
witnesses in whole or in part inherently improbable when
viewed in the light of the whole record. Accordingly, the
findings in this section "B" are based upon the testimony
of the witnesses called by the General Counsel whose re-
spective names have been set out in the margin. Although
the rejected testimony of the Menkuses and Holybee has
not been set out, I have carefully considered their testimo-
ny but have rejected it in favor of testimony which, for
reasons set out above, in my opinion is more trustworthy
and reliable.
1. The conduct of Max Menkus
Max Menkus, Respondent's president and principal
stockholder, made the following statements to employees:
(1) in or about June, he warned employee Richard Babb
that he would sell the Company's trucks and "close the
doors" if the employees ever went union;3 (2) on or about
August 22 or 23, warned a group of employees "that he
would close the doors if the Union comes in";' (3) in Au-
gust and on September 14, warned employee James Brock-
way that if the Union came in, the Respondent would close
its doors and stated, without explanation, that the Respon-
dent "could not afford" the Union, and further explained
that the reason the Respondent was in a position to close
its doors was that he (President Menkus) had already made
his money;5 (4) in early September, prior to the date of the
election, in speaking with employee "Uncle Jack" Brock-
way he referred to the petition filed by the Union asking
for the representation election, and told "Uncle Jack" he
did not want a union and did not care about the results of
the election because he was ready to retire and would just
as soon sell his trucks and close the business and move to
the State of Arkansas;' (5) twice within 2 to 3 weeks of the
3 Based upon the testimony of Richard Babb
4 Based upon the testimony of Arthur Bazan
5 Based upon the testimony of James Brockway
6 Based upon the testimony of "Uncle Jack" Brockway
M & J TRUCKING CO., INC.
September 17 election he warned employee David Cornejo,
a driver with very little employment seniority, that if the
Union succeeded in getting into the Company that the five
drivers with the least seniority (which included Cornejo)
would be terminated and that Menkus would close the
business before he would let the Union come in;' and (6)
on or about September 22, told employee James
Brockway's son , employee Thomas Brockway, that his fa-
ther, James Brockway, was stabbing Menkus in the back
and warned that if the Union came in, that the business
"could not stand it" and that Respondent would reduce the
number of its trucks to six and just keep its good customers
and stop doing business with the remainder.8
I find that the statements made by Max Menkus to the
employees, as described in subsections (1) through (6) im-
mediately above, either expressly or by implication threat-
ened employees that unionization would ipso facto result in
the loss of their employment. Although an employer may
predict the precise effects he believes unionization will
have on his company, the prediction must be carefully
phrased on the basis of objective facts to convey an
employer's belief as to demonstrably probable conse-
quences beyond his control. N.L. R. B. v. Gissel Packing Co.,
395 U.S. 574, 618 (1969). President Menkus did not voice
the above-described statements in such a noncoercive man-
ner. They were not phrased in terms of objective state-
ments of possible financial problems which the Respon-
dent would face in the event of unionization, followed by a
prediction that such problems could make closure or a re-
duction in business a necessity.
In contrast to the coercive nature of Menkus' above
statements is the noncoercive manner in which he initially
explained the Respondent's position toward unionization
to employee James Brockway in early August when Brock-
way, before visiting the Union, advised President Menkus
that the employees, absent an increase in their rate of pay,
intended to unionize. Menkus told Brockway that the
Company could not afford to pay the employees more
money, offered to show Brockway the Company's books,
and warned if the employees unionized, that the Company
could not afford the Union and would have to close. In my
opinion, this statement did not constitute an unlawful
threat but was a lawful exercise of Respondent's right of
free speech protected by Section 8(c) of the Act. The state-
ment-if the employees unionize, the Company would
have to close-was made in the context of Menkus' de-
scription of the Company's poor financial condition and its
inability to grant a general increase in wages and what
would happen if the employees chose to force the Compa-
ny to grant such a wage increase through unionization. In
short, Menkus unambiguously told Brockway the effects
he believed the employees' efforts to get a general wage
increase through the Union would have on his Company.
The statement was not calculated to reasonably lead em-
ployee Brockway to believe that Respondent would retali-
ate against the employees simply because they had sup-
ported the Union.
In addition to engaging in the above-described unlawful
7 Based on the testimony of David Cornejo
8 Based upon the testimony of Thomas Brockway
595
conduct, President Menkus interrogated employees Thom-
as Brockway, David Cornejo, and Edwin Gaudette about
their union activities and sympathies.
Twice within 2 to 3 weeks before the September 17 elec-
tion, Menkus asked employee David Cornejo what he
thought of the Union. Cornejo, who had signed a card for
the Union, claimed a lack of knowledge. On each occasion
Menkus, as described above in subsection (5). threatened
Cornejo with a loss of employment if the Union succeeded
in organizing the Company?
Twice in September before the date of the election, over
the telephone and at the premises of the Respondent, Presi-
dent Menkus asked employee Edwin Gaudette if he had
signed a union card. Gaudette indicated that he had signed
such a card. Once, in response, Menkus stated that "there
is no way I'm going to be able to function if this ever goes
through."10
On or about September 10, over the telephone, President
Menkus asked Thomas Brockway "what do you think
about the Union? Which way are you going?" When
Brockway, who had signed a union card, indicated he fa-
vored the Union, Menkus answered "he just wanted to
know."11
In questioning employees Brockway, Cornejo, and Gau-
dette about their union activities and sentiments, as de-
scribed above, President Menkus did not have, and did not
suggest to the employees that he had, any legitimate reason
for questioning them, and gave no assurances against repri-
sal. Contrariwise, Menkus expressly threatened employee
Cornejo with a loss of employment if he supported the
Union and implicitly suggested to employee Gaudette that
the Respondent would not operate with the Union. More-
over, the interrogation took place in the context of Men-
kus' several unlawful threats to close the business or reduce
its size if the Union succeeded in organizing the employees.
In these circumstances, I am convinced that the interroga-
tion of Brockway, Cornejo and Gaudette by President
Menkus reasonably tended to restrain or interfere with em-
ployees' rights guaranteed by Section 7 of the Act, and
violated Section 8(a)(1) of the Act. See, generally, Blue
Flash Express Inc., 109 NLRB 591 (1954).
2. The conduct of Dale Holybee
On or about August 21 or 22, the date the Respondent
received notification from the Board that the Union had
filed a petition asking for a representation election, Dale
Holybee, the Respondent' s general manager , made the fol-
lowing statements to employees: (1) in the Company's
shipping dock office, told a group of approximately three
drivers that President Menkus was "mad" because the
Union was attempting to organize the employees and that
he would close the business if the Union succeeded;12 (2) in
the area of the Company's shipping dock office, spoke to a
group of employees in a voice loud enough to be heard by
others in the vicinity and said that the Company wanted a
fast election and would know who to fire when the election
9 Based upon the testimony of David Cornejo
10 Based upon the testimony of Edwin Gaudette
11 Based upon the testimony of Thomas Brockway
12 Based upon the testimony of Alfred Alderette.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was over;13 (3) in the Company's shipping dock office, told
employee Raymond Lunsford, a driver with very little em-
ployment seniority, that the Respondent could not afford
the Union and if it succeeded in getting in that the Respon-
dent would have to terminate about five drivers having the
least seniority and, if the Union did not succeed, that Ho-
lybee knew which employees were behind the Union and
would terminate those employees;14 (4) at the Company's
gas pump, told driver John Perkins and mechanics James
McCartney and Larry Danhieux that President Menkus
would close the business if the Union came in.15
I find that the statements made by General Manager
Holybee to the employees, described immediately above in
subsection (1) through (4), are unlawful within the meaning
of Section 8(a)(1) of the Act. Each expressly threatened
employees that unionization would ipso facto result in the
loss of their employment. They constitute out-and-out
threats designed to discourage employees from supporting
the Union rather than carefully phrased predictions de-
signed to convey economic consequences beyond the
Respondent's control which would flow from unionization.
Likewise violative of Section 8(a)(1), for the same reasons,
is the further statement made by Holybee to employee
"Jackie" Brockway on the day of the election after the
results had been announced, that if the Union had won the
election the five drivers with the least seniority would have
been terminated.16
I further find that the Respondent, through General
Manager Holybee, on a number of occasions, described
below, unlawfully interrogated employees about their
union activities and feelings.
As described in subsection (1) immediately above, Holy-
bee warned a group of employees that President Menkus
would close the business if the Union succeeded in orga-
nizing the employees. Holybee also asked the employees
being addressed if they had signed a card for the Union.
Each answered negatively. Holybee then indicated that he
did not understand the basis for the Union's petition for a
representation election, since he had asked all of the em-
ployees if they had signed union cards and no one would
admit to having signed such a card.17 On the same day,
August 21 or 22, referring to the petition for a representa-
tion election filed by the Union, Holybee asked employee
James Brockway if he knew anything about the Union and
told Brockway that, in response to his (Holybee's) interro-
gations, none of the employees would acknowledge that
they knew anything about the Union.18
As described in subsection (3) immediately above, Holy-
bee threatened driver Lunsford with a loss of employment
if the Union succeeded in organizing the employees. He
13 Based upon the testimony of James Brockway which was substantially
corroborated by the testimony of "Jackie" Brockway and Richard Babb
14 Based upon the testimony of employee Raymond Lunsford
15
Based upon the testimony of employee John Perkins In connection
with this conduct , I have considered and rejected the testimony of mechanic
McCartney, called by Respondent, who testified that he was the person who
told Perkins that President Menkus would close the business if the Union
came in In manner and bearing (demeanor) McCartney was not an impres-
sive witness
16
Based upon the testimony of employee "Jackie" Brockway
17 Based upon the testimony of employee Alfred Alderette
15 Based upon the testimony of employee James Brockway
also asked if Lunsford knew anything about the Union.
Lunsford, although he had previously signed a union card,
replied he had heard "a little" about the Union.19
As described in subsection (4) immediately above, Holy-
bee warned employees Perkins, McCartney, and Danhieux
that President Menkus would close the business if the
Union came in. He also asked if they had signed cards for
the Union. Each of them, including Perkins, although he
had previously signed a union card, denied doing so. 0
Two to three weeks prior to the election, Holybee ap-
proached three drivers on the Company's shipping dock,
one of whom was employee David Cornejo, and asked if
they knew anything about the Union. Cornejo, although he
had previously signed a union card, stated he knew nothing
about the Union 21
On or about September 15, the credible and undenied
testimony of driver Edwin Gaudette is that Holybee asked
him if he had signed a union card. Gaudette admitted he
had signed such a card.
In asking employees if they had signed cards for the
Union or if they knew anything about the Union, as found
above, the Respondent, through General Manager Holy-
bee, violated Section 8(a)(1) of the Act. Holybee did not
have, and did not suggest to the employees that he had,
any legitimate reason for questioning them and gave no
assurances against reprisals. To the contrary, a substantial
amount of the interrogation took place at the same time
the employees involved were being threatened by Holybee
with a loss of employment if they supported the Union.
Moreover, all of the interrogations took place in the con-
text of Respondent's threats, voiced through President
Menkus as well as Holybee, to retaliate against the employ-
ees if the Union won the representation election. In these
circumstances, I am convinced that Holybee's interroga-
tion of employees, as described above, reasonably tended
to restrain or interfere with employees' rights guaranteed
by Section 7 of the Act, and violated Section 8(a)(1) of the
Act.
3. The conduct of Joel Menkus
The complaint, as amended at the hearing, alleges that
Joel Menkus, the Respondent's vice president who is also
the son of Respondent's president, Max Menkus, between
August 20 and September 17 interrogated employees about
their union sympathies. In support of this allegation, the
General Counsel established that on or about September 1
Vice President Menkus, while helping driver Alfred Alder-
ette, asked Alderette how he felt about the Union. Alder-
ette, who had previously signed a union card, evaded the
question by answering that he did not care one way or
another. Menkus, however, continued to press the matter.
He assured Alderette that whether he admitted he favored
19 Based upon the testimony of employee Raymond Lunsford
20 Based upon the testimony of employee John Perkins McCartney, a
witness called by the Respondent who, as I have previously found, was not
a convincing witness, at one point in his testimony admitted that Holybee at
the gas pump asked Perkins , McCartney, and Danhieux if they had signed
cards for the Union He later retracted this testimony I have rejected Mc-
Cartney's testimony as well as Holybee's denial
21 Based upon the testimony of employee David Cornejo Holybee testi-
fied that he probably asked Cornejo "do you know about the Union "
M & J TRUCKING CO., INC.
or opposed the Union his job was not in jeopardy. Alder-
ette repeated that it did not really matter.22
I am of the opinion that Vice President Menkus' ques-
tion-"how [Alderette] felt about the Union"-constitutes
unlawful interrogation violative of Section 8(a)(1) of the
Act. See Winchester Spinning Corporation v. N.L.R.B., 402
F.2d 299, 301-303 (C.A. 4, 1968). The interrogation took
place in the context of the Respondent' s extreme hostility
toward the Union. Menkus insisted upon an answer to his
question despite Alderette's expressed reluctance to discuss
the subject. Alderette's response, when viewed in the light
of his having signed a union card, indicates an apprehen-
sion of reprisal. And the Respondent had no permissible
business interest or other justification for probing into the
union sentiments of this employee. In these circumstances,
despite the fact that Vice President Menkus advised Alder-
ette that no reprisals would be taken, on balance, I find
that the interrogation had the reasonable tendency to inhi-
bit the free exercise of an employee's union activities or
sympathies and was proscribed by Section 8(a)(1) of the
Act.
In addition to his interrogation of employee Alderette,
the following conversation in which Vice President Joel
Menkus was involved is relevant to this proceeding. On the
morning of the representation election of September 17,
shortly after the announcement of the election results, the
Respondent, as described later in this decision, terminated
the employment of five drivers, one of whom was the fa-
ther of driver Thomas Brockway. That same afternoon
when Thomas Brockway returned to the Company from
his morning route, he spoke with Vice President Joel Men-
kus, who told him that the five drivers had been terminat-
ed, named the five and explained that the Respondent's
president had left word that if the Union did not win the
election that these five drivers, one of whom was James
Brockway, were to be terminated. Continuing, Vice Presi-
dent Menkus then asked Thomas Brockway why his father,
James Brockway, was such an avid adherent of the Union.
Thomas Brockway in response pointed out that other em-
ployees besides his father also supported the Union.23
I find that on September 17 Respondent's vice president,
by telling employee Thomas Brockway that the
Respondent's president had left word that if the Union lost
the election that five drivers whom he specified should be
terminated, engaged in conduct which was calculated to
discourage employees from supporting the Union and, as
such, violated Section 8(a)(1) of the Act. That it was Vice
President Menkus' intent to lead Thomas Brockway to be-
lieve that the Union's unsuccessful organization campaign
was responsible for the termination of the five employees is
evidenced by his juxtaposing his explanation for the termi-
nations with an inquiry into the reason that Thomas
Brockway's father, one of the terminated employees, had
been such an avid union adherent Also, any doubt of the
coercive nature of this statement if removed when it is
viewed in the context of General Manager Holybee's pre-
election threats, previously described, to the effect that Re-
spondent would know whom to fire when the election was
22 Based upon the testimony of employee Alfred Alderette
23 Based upon the testimony of employee Thomas Brockway
597
over and specifically that, if the Union lost the election, he
would terminate those employees whom Respondent be-
lieved were union adherents.
In concluding that the Respondent violated Section
8(a)(1) by virtue of Vice President Menkus' postelection
statement to employee Thomas Brockway, I have carefully
considered that this misconduct was not specifically al-
leged in the complaint and that at the hearing the counsel
for the General Counsel acknowledged that he was not
seeking a finding of a violation of Section 8(a)(1) based
upon this conduct. The Respondent, however, was not
prejudiced by this disclaimer. Respondent fully litigated
this matter, closely cross-examined Thomas Brockway
about the conversation, and called upon Vice President
Menkus to give his version of the conversation. For this
reason and because this conduct is directly related to other
specifically alleged unfair labor practices, the termination
of the five-alleged discriminatees, I believe I am obligated
to rule on this conduct even though it is not specifically
alleged as an unfair labor practice. See, e.g., Monroe Feed
Store, 112 NLRB 1336 (1955).
C. The Discriminatory Layoff of Five Employees
1. The Government's case-in-chief
Respondent on the day of the Board-conducted repre-
sentation election laid off five of its drivers immediately
following the announcement of the results of the election.
The circumstances surrounding the layoff can be briefly
stated.
The election took place on September 17 between 7:30
and 8:30 a.m. The ballots were counted and the results
announced that same morning about 9:30 a.m. The
Respondent's General Manager Holybee approximately 10
minutes after the announcement of the election results in-
structed drivers Arthur Bazan, Richard Babb, John Daley,
"Uncle Jack" Brockway, and James Brockway to turn in
their company gasoline credit cards and handed them their
paychecks. Holybee returned to the office. The five em-
ployees immediately followed Holybee into the office and,
with James Brockway acting as spokesman, demanded an
explanation. Holybee replied that the Company was "cut-
ting back" and they were the drivers selected for layoff.
When James Brockway threatened to go to the Board and
protest the layoff, Holybee replied that he was only follow-
ing instructions.
The layoff occurred in the middle of the workday and on
a Monday, the start of a workweek. The employees had
received their paychecks on Friday, September 14. On Sep-
tember 17, they were paid for the full day, although they
were terminated about 10 a.m.
The Respondent at the time of the layoff employed ap-
proximately 37 employees of whom 19 had signed cards
authorizing the Union to represent them. Each employee
laid off on September 17 had signed a union card; no em-
ployee who had not signed such a card was laid off on that
date and as far as the record shows on any other date.
The five laid off employees each had been employed by
the Company for a number of years and were regarded as
competent employees whom the Respondent intended, as
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Menkus testified , to recall to work at the first
available opportunity. They were not given any indication,
however, that their layoff was only temporary and that
they could expect to be recalled as soon as possible. To the
contrary, their request for an explanation for the layoff
was, in effect , ignored . In my opinion , the abrupt manner
in which the layoff was effectuated was calculated to
frighten the laid off employees into believing that they had
been permanently terminated rather than temporarily laid
off. This abruptness, coupled with the timing of the layoff,
coming hard on the heels of the representation election,
and the Respondent 's openly expressed antagonism toward
the Union , was further calculated to frighten the
Respondent's employees into believing that the layoff was
motivated by the Respondent's union animus . Also, in this
connection , I note that the manner in which the Respon-
dent notified the employees of the September 17 layoff dif-
fers markedly from the manner in which it handled a simi-
lar situation in about 1970 . Then , as will be described in
greater detail later in this Decision , Respondent , because
of economic conditions, decided it needed to lay off em-
ployees but, rather than abruptly lay them off without ex-
planation , the Respondent 's President Max Menkus assem-
bled all of the Company's employees and told them that he
would have to lay off three or four until business improved
and explained the situation to the employees. This stands
in marked contrast to the callous manner in which the Sep-
tember 17 layoff was handled.
The explanation for this unusual treatment of valued se-
nior employees , the General Counsel urges , stems from the
Respondent's desire to destroy the Union's campaign to
organize the employees. In this regard, I note that the lay-
off occurred after the Union's organizational efforts were
met by a massive but largely unsuccessful unlawful coun-
tercampaign by the Respondent 24 President Menkus
warned employees, in effect, that if the Union won the
election that they would be out of jobs because he would
sell all or part of his trucks or close the Company or termi-
nate employees with the least seniority . General Manager
Holybee echoed these sentiments and warned employees,
in effect , that if the Union won the election the Respon-
dent would close the business or would know which em-
ployees to terminate or would terminate the employees
with the least seniority. Also, Holybee warned that even if
the Union failed to win the election that the employees
behind the Union would be terminated. Finally, on the day
of the layoff, Vice President Menkus, in explaining the lay-
off to an employee, in effect indicated that the layoff was
motivated by union considerations.
To recapitulate , the Respondent engaged in a massive
antiunion campaign designed to discourage its employees
from voting for the Union. The Union, despite the
Respondent's coercive tactics, narrowly missed securing a
majority of the employees' votes. The strength of the
24
Despite its massive campaign of coercion designed to discourage the
employees from voting for the Union , 18 of the Respondent 's 37 employees
voted for the Union . The large number of votes for the Union came as a
complete surprise to President Menkus , who prior to the election, as he
testified , "felt sure we would not have any problem" because he believed the
great majority of his employees would not vote for the Union He testified
that he "never dreamed" that so many employees favored the Union
Union among the employees , as indicated by the results of
the election , admittedly came as a complete surprise to the
Respondent and indicated to the Respondent that its an-
tiunion campaign had failed . Within 15 minutes after the
announcement of the election results and the knowledge
that it had a large number of union adherents in its em-
ploy, the Respondent with no prior warning abruptly laid
off five of its drivers, all of whom had signed union author-
ization cards . The layoff was the first one in the
Respondent's 14 years of existence . It took place in the
midst of a workweek and the laid off employees were not
allowed to finish out the workday. Despite their years of
service with the Respondent , the laid off employees' re-
quest for an explanation for their layoff was , in effect, ig-
nored by General Manager Holybee , whose response was
that there was a "cutback" and they had been chosen for
layoff. The abrupt manner in which this layoff was effectu-
ated was not consistent with the Respondent 's conduct
prior to the Union's campaign in a similar situation. Also,
Vice President Menkus contemporaneously with the layoff
explained the selection of employees for layoff in terms
which indicated that union considerations played a part in
the layoff. Finally, prior to the election General Manager
Holybee had warned that if the Union lost the election that
employees behind the Union would be terminated. For all
these reasons , summarized above , the layoff of the five
drivers on September 17 cnes out discrimination.
The General Counsel urges that the September 17 layoff
was motivated by antiunion considerations but that , even if
the layoff was necessitated by legitimate business consider-
ations, the selection of employees for layoff was motivated
by unlawful considerations . For the reasons summarized
above , I am satisfied that the record establishes a strong
prima facie case of unlawful discrimination which imposed
upon the Respondent the duty of going forward with evi-
dence giving an adequate explanation for both the decision
to lay off and its basis for selecting the particular employ-
ees for layoff. See N.L.R.B. v. Miller Redwood Company,
407 F.2d 1366, 1369 (C.A. 9, 1969). In concluding that the
General Counsel has made out a prima facie case of dis-
cnminatory selection for layoff, as well as a prima facie
showing that the decision was discriminatory, I have care-
fully considered the lack of direct evidence that the Re-
spondent knew that any of the laid off employees, other
than James Brockway , were union adherents . But, for the
reasons summarized above, I am convinced that the cir-
cumstantial evidence establishes that Respondent, in se-
lecting each of the five employees for layoff , was motivated
by its knowledge or belief that each one was a union adher-
ent. Particularly relevant in this respect is the fact that of
the employees selected for layoff, all five had signed union
cards. This presents a telling percentage of a 100-percent
layoff of union card signers, while the percentage of union
card signers employed in the voting unit , as a whole, was
only 51 percent. When viewed in the context of the
Respondent's extreme hostility toward the Union as ex-
pressed by its unlawful preelection course of conduct, this
by itself indicates discriminatory selection for layoff. N.L.
R.B. v. Midwest Hanger Co. and Liberty Engineering Corp.,
474 F.2d 1155, 1158 (C.A. 8, 1973). Also see N.L.R.B. v.
Chicago Steel Foundry Co., 142 F.2d 306, 308 (C.A. 7,
M & J TRUCKING CO., INC. 599
1944), where the Court stated:
To be sure, percentage evidence, standing along,
will not support or sustain an order based on §8[(a)](3)
of the Act. But the disproportionate treatment of
union and nonunion workers may be very persuasive
evidence of discrimination , and may create an infer-
ence of discrimination leaving it to an employer to
give an adequate explanation of the discharge or lay-
off . . . [Citations omitted.]
I shall now set out and evaluate the Respondent' s case-
in-chief.
2. The Respondent 's case-in-chief
a. The Respondent 's reasons for deciding to lay off the five
employees
The Respondent contends that its decision to lay off em-
ployees as implemented on September 17 was triggered by
a recommendation of its accountant, Charles Stephens.
Stephens , the owner of Transport Data Processing, a com-
pany which does bookkeeping and accounting for a num-
ber of motor carriers , was first employed by the Respon-
dent in about April. Following his normal practice, Ste-
phens visited the Respondent 's place of business on a date,
described later in this Decision , for the purpose of prepar-
ing an "Income Statement" for August . This statement
consists of an itemization of the Respondent 's operating
income and expenses for the month . Stephens' investiga-
tion revealed that operating revenues for August totaled
$66,519 and operating expenses $87,875 showing a net op-
erating loss of $21,456 . Included in the expenses was a "re-
serve" of $15 ,000 to cover an insurance expense which had
not been incurred in August . In talking with the
Respondent's office clerical who is the Company 's book-
keeper , Stephens testified , he was informed that the Re-
spondent, although it had never been billed, owed an esti-
mated $15,000 for certain insurance coverage for the 12-
month period ending November 30. Based on his conversa-
tion with the Respondent 's bookkeeper and various
documents , not described , he estimated that the Respon-
dent owed at least $15,000 for this insurance . Expecting
that eventually the Respondent would receive a bill for this
amount , Stephens , as he testified , included this amount as
an added insurance expense for August. The Respondent's
August income statement , as prepared by Stephens, in this
regard reads in the margin : "Included in the August state-
ment of Income and Expenses , a reserve of $ 15,000 has
been established to cover a forthcoming final insurance
statement . This statement shall be subject to audit and ver-
ification."
Accountant Stephens informed President Menkus that
this $ 15,000 insurance expense that he had discovered
might eliminate a good portion of the Respondent 's operat-
ing profits for the 8-month period ending August 31. Ste-
phens also advised President Menkus to liquidate the large
indebtedness as fast as possible In this connection Ste-
phens, as he testified , asked President Menkus "if possibly
he could reduce his labor force , but at the same time not
sacrafice his service . I don't know whether I suggested or
whether I asked, I don't recall. I just made-I possibly
made a suggestion . I think it was in the form of a sugges-
tion rather than asking." President Menkus did not re-
spond either affirmatively or negatively, he simply said he
would consider the matter.25 Thereafter, President Menkus
testified that he met together with Vice President Menkus
and General Manager Holybee at which time he decided
he would lay off employees and, after discussing the matter
with Vice President Menkus and Holybee, selected five
employees for layoff. Briefly stated, the Respondent con-
tends that its president prompted by a suggestion by its
accountant that it reduce labor costs, for this reason, decid-
ed to lay off the five employees involved in this case. I
reject this defense for the following reasons.
(a) The testimony of General Manager Holybee does
not support President Menkus' contention that his decision
to lay off was prompted by a suggestion of accountant
Stephens. Also, Holybee's testimony on a significant mat-
ter sharply conflicts with Stephens' story.
Holybee testified that it was the Respondent's own
bookkeeper, not Stephens, who told the Respondent's offi-
cials that it owed a substantial amount to an insurance
company. Specifically, according to Holybee, the
Company's bookkeeper, Helen, told management that it
owed a substantial bill to an insurance company. She told
them, according to Holybee, that the Respondent' s insur-
ance broker had not kept the Respondent currently billed
but had "all at once threw a big bill to us and we had to
figure something out." Yet, according to accountant Ste-
phens, when he recommended a reduction in the labor
force, the Respondent had not been presented with such an
insurance bill. Indeed , Stephens testified that as late as the
hearing in this case, January 1974, the Respondent still had
not received such a bill and had not paid the estimated
$15,000 allegedly owed the insurance company.
(b) It would seem that if a decision to lay off employees
was based upon legitimate business considerations that
President Menkus, who made the decision, and Vice Presi-
dent Menkus and General Manager Holybee, whom he
consulted with, would have no difficulty in recalling when
the decision was made, especially since it was the
Respondent's first layoff 26 Nevertheless, the testimony ad-
duced by the Respondent on this essential point was vague,
evasive, and inconsistent.
President Menkus initially testified that his conversation
with Stephens which prompted his decision to lay off em-
25 The version of what Stephens said to President Menkus when they
discussed the Company 's operating income and expenses for August is
based upon the testimony of Respondent's witness Stephens I have not
relied upon President Menkus' version of this conversation On the subject
of the Respondent's decision to lay off employees and events which prompt-
ed the decision , President Menkus was not a convincing witness He did not
impress me as a candid witness
impress this regard, I note that the charge in this case alleging, among other
things, that the September 17 layoff was unlawfully motivated, was filed on
September 17 Thus , Respondent was on notice at an early date that the
events which prompted the discharge were significant and possibly would
involve it in litigation Under the circumstances , it is not likely that the
memory of Respondent 's officials of the events surrounding the
Respondent 's decision to lay off would have been dulled by the passage of
time
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees took place "around the 1st of August or the 1st of
September. That was the month of August. I say around
the 5th of September, some where in that area." He then
unequivocally dated the conversation as occurring on Sep-
tember 5, but then changed the date to August. Regarding
the date he decided to lay off the employees, President
Menkus initially testified the decision was made " at least"
2 weeks before September 17 but then changed this to Au-
gust 14 and still again changed his testimony, now placing
the date of his decision as occurring after he received a
copy of the August income statement from accountant Ste-
phens. This last date is obviously impossible inasmuch as
President Menkus admittedly did not receive this income
statement until October 16.
The testimony of Respondent's General Manager Holy-
bee rather than clarifying the date when Respondent de-
cided to lay off the employees only makes the matter more
confusing. Holybee, at first, testified that the decision was
made in late August, then testified he was first told there
was going to be a layoff in early August, then testified his
first information about the layoff came in September, then
testified that President Menkus between August 1 and 10
told him he had decided to lay off employees, at which
time the particular employees were selected for layoff.
Vice President Menkus, the son of President Menkus,
testified that he met with his father and Holybee in the
beginning of August "or thereabouts" at which time he was
told about the decision to lay off employees and, together
with his father and Holybee, selected the employees to be
laid off. Later, when asked if he was certain that the deci-
sion to lay off employees had been made in August, he
testified "I believe it was the beginning of August, correct."
But then proceeded to change his testimony to the "end" of
August.
In my opinion, the inability of the Menkuses and Holy-
bee to place the decision to lay off with any degree of
exactitude and their vagueness and evasion and inconsis-
tent testimony indicates a desire to conceal something il-
legitimate rather than simply mere forgetfullness caused by
the passage of time.
(c) Also relevant in evaluating the Respondent's justifi-
cation for the September 17 layoff is its explanation for the
timing of the layoff. President Menkus and General Man-
ager Holybee testified that the decision, and the selection
of the employees, for layoff was made on or about Septem-
ber 10, 1 week before the actual layoff, at which time it was
also decided to allow the employees selected for layoff to
continue working until after the election of September 17.
They further testified that, in accordance with this deci-
sion , the Company's bookkeeper at that time, September
10, made out separate termination checks for the laid off
employees to cover I day, September 17. This rings false.
Respondent did not call its bookkeeper to substantiate this
highly unusual procedure allegedly used by Respondent,
nor did the Respondent produce its checkbook or the can-
celled checks drawn during this period which, according to
Holybee, would show that the termination checks were in
fact made out 1 week prior to September 17.
When asked why the Respondent chose the date of Sep-
tember 17 to implement its decision to lay off employees,
President Menkus answered: "I was only waiting for the
election to be over and the decision on the vote. And either
way-we would have probably had it worse, you, a lot
more , if it had went the other way, but as long as we had
one [referring to the fact that the Respondent won the elec-
tion by one vote], I felt to layoff the few men we had to
plan on." When the question was asked a second time,
President Menkus answered: "I thought the laid off em-
ployees were entitled to vote . . . and I wanted to give
them their chance." No mention was made by Menkus that
his decision not to implement the layoff before the election
was motivated by a belief that he could not lay off employ-
ees prior to the election.27 Holybee, on the other hand, in
explaining why the layoff was delayed for I week until
immediately after the election, testified: "We had the no-
tice from the Board [referring to the Notice to Employees
submitted to the Respondent for posting] and my interpre-
tation of it was I could not lay anybody off or fire anybody
until after the election." Holybee did not refer to the lan-
guage in this notice which Respondent had received on
either August 21 or 22 which led him to believe that he
could not lay off or discharge employees prior to the elec-
tion. I have carefully read this notice, General Counsel's
Exhibit 9, and am of the opion it cannot be reasonably so
construed. Indeed, Holybee admitted that prior to the elec-
tion and after the Respondent received this notice that he
discharged employee Hal Boehm and that before discharg-
ing Boehm telephoned the Board's Regional Office for ad-
vice and the Board employee told him to do what he had to
do.28 No one from the Board advised him that the Respon-
dent could not terminate Boehm and the Respondent dis-
charged Boehm on August 24
To sum up, I find that the inconsistent reasons advanced
by the Respondent to justify the alleged delay in imple-
menting its decision to lay off, the patently false reasons
advanced to justify the delay, the inability of Respondent's
officials to place the date of the decision to lay off with any
degree of exactitude and their evasive and inconsistent tes-
timony on this point, when coupled with the failure of the
Respondent to produce its available documentation or its
bookkeeper to support its story that the decision postdated
the election, all support an inference that the decision to
lay off was not made until the time of the actual layoff,
September 17.
(d) An explanation for the vague, evasive, and inconsis-
tent testimony given by the Menkuses and Holybee on the
27 Later in response to a leading question, Menkus testified the "Notice to
Employees" forwarded to him for posting by the Board in connection with
the Union's petition for the election was interpreted by him to mean that he
could not lay anyone off Menkus was not a convincing witness when he
gave this testimony which seemed to be an afterthought on his part If, by
this testimony Menkus was inferring that he would have immediately laid
off the five employees prior to the election but for his understanding of the
notice, it is inconsistent with his earlier testimony to the effect that he de-
layed laying them off because he wanted to give them a chance to vote
which he thought they were entitled to do
28 In explaining why he phoned the Board in the case of Boehm and not
in the case of the five laid off employees, Holybee testified, in substance,
that "he thinks" the reason was that his interpretation of the notice was that
an employer prior to a representation election can terminate employees for
cause but cannot otherwise lay off employees for legitimate business rea-
sons The notice does not support such an interpretation and, in advancing
what he thought was his reason for treating the laid off employees different-
ly than Boehm , Holybee was not a convincing witness
M & J TRUCKING CO., INC 601
subject of the date the decision to lay off was reached is the
strong inference that the meeting between accountant Ste-
phens and President Menkus, which allegedly triggered the
decision , did not take place until after the layoff had al-
ready occurred.
Accountant Stephens services a number of clients be-
sides Respondent, whom he apparently visits each month.
Stephens normally presumably does not have an indepen-
dent recollection of the date he visits any one of his cus-
tomers. Specifically, normally he would not remember the
exact date when he visited the Respondent's premises and
spoke with President Menkus about the Company's August
operating expenses. But Stephens does keep a "day book"
in which he writes all his appointments and which he testi-
fied contains the exact date when he met with Menkus and
suggested that Respondent reduce its work force. Respon-
dent knew that this date was a vital part of its defense, yet
Stephens testified that he did not bring his day book with
him and his testimony indicates that he did not even con-
sult this book so as to refresh his recollection prior to com-
ing to the hearing. When Stephens was asked to date his
meeting with Menkus, he testified: "I don't recall the exact
date, but I do recall it was the early part of September. I
will take a guess. I will say between the 5th and 10th of
September." At this point Stephens was not a convincing
witness in manner and bearing. Also unexplained was his
failure to either bring his day book or at the very least to
consult it to refresh his memory about the date I would be
naive to believe that prior to taking the witness stand Ste-
phens had not been advised by the Respondent's attorney
as to the nature of the subject matter on which he would be
questioned, especially where, as here, Stephens in prepara-
tion for this litigation had prepared certain documentary
evidence for use by Respondent. Stephens' inability to re-
call the date of his meeting with President Menkus, his
unconvincing demeanor when he testified on this point,
and the evasive and inconsistent testimony of President
Menkus as to when he met with Stephens make Stephens'
day book crucial and I can only infer that the information
contained therein would have been unfavorable to Respon-
dent. Certain other testimony given by Stephens reinforces
this inference. Stephens testified, in effect, that it is his
practice to send a written monthly income statement to the
Respondent approximately 10 days after visiting the prem-
ises and looking over the books of account. President Men-
kus reluctantly admitted that he did not receive the
Respondent's income statement for August from Stephens
until October 16, thereby indicating that Menkus' meeting
with Stephens where Stephens recommended a cutback in
personnel did not take place until after the layoff of Sep-
tember 17.
(e) Even assuming that accountant Stephens on or
about September 5 suggested to President Menkus that if
service would not be compromised that the Respondent
should reduce its labor force, the evidence does not estab-
lish that Menkus during the normal course of business
would have implemented this suggestion. It suggests the
opposite.
Prior to the layoff of September 17 and prior to the
Union's organizational campaign, the Respondent had ser-
iously considered laying off employees but had rejected
this course of conduct. Thus, in 1972 the Respondent lost
$8,200. Unable to borrow money from the bank, the Re-
spondent had to borrow $6,000 from President Menkus in
January 1973 for its license plates and about $3,700 in Feb-
ruary 1973 for a down payment on equipment. Vice Presi-
dent Menkus testified that in late 1972, when Respondent
realized it was not operating at a profit, it recognized and
discussed the need for layoff and further testified that even
before August 1973 "someone" suggested that employees
be laid off. This suggestion, Vice President Menkus testi-
fied, was discussed by Respondent's officials and it was
decided that rather than lay off employees to rearrange the
Company's "business activities." The rearrangement ap-
parently worked out fine. In 1973, during the 6-month peri-
od ending June 30, Respondent earned a profit of $18,000
and in July earned a profit of $5,034. Its freight revenues
for the month of August were the highest of any month in
1973. However, Respondent's profit picture suffered in Au-
gust in large part because of an unexpected $15,000 ac-
counting insurance expense. This expense is simply a paper
expense for, as accountant Stephens testified, it has never
been paid. In fact, according to Stephens, the Respondent
has never even received a bill for this amount. Yet it is
plain from the testimony of General Manager Holybee that
the main factor which prompted the decision to lay off was
this unexpected insurance expense of $15,000. Unexpected
that is as far as Stephens was concerned, for it is plain that
President Menkus had known about this alleged unpaid
insurance account as early as July. Menkus admitted that
as early as late July Respondent had received a notice of
cancellation of this insurance for nonpayment.
In sum , what the record reveals is that Respondent with-
in a year prior to the layoff of September 17, despite oper-
ating losses, had consciously chosen not to lay off employ-
ees. The only substantial new element in the picture in
September was the Respondent's knowledge of the Union
and its animus.29
In addition, the evidence establishes that the Respon-
dent simultaneous with the September 17 layoff was forced
to curtail its services , a course of conduct contrary to what
Stephens suggested. Thus, President Menkus admitted that
about the same time that Respondent was laying off em-
ployees on September 17, it discontinued a service to cus-
tomers previously instituted which was similar to a parcel
post type service. Menkus testified that it was because of
this parcel post type service that in about June or July the
Respondent "put on a lot of new men." Menkus vaguely
indicated that the new service was discontinued because it
turned out to be losing money. But this certainly was not
reflected in the Respondent's operating position for the
first 7 months of 1973;30 it operated at a substantial net
profit. I cannot believe that the Respondent's sudden ces-
sation of this service, about the same time as the layoff of
September 17, was coincidental, but am of the opinion that
29 In arriving at this conclusion. I have carefully considered the testimony
of President Menkus that in August business "took a down slump very
badly for some unknown reason" and that the Respondent 's "receipts"
dropped $2,000 to $3,000 each week Respondent 's income statement for
3
gust shows that its receipts for that month were the highest for that year.Au
President Menkus admitted that the Company had been using this ser-
vice since 1972
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was the natural result of the layoff of five drivers which
meant that the Respondent had to cut back its services.
Previously, when business conditions warranted a layoff,
Respondent rather than lay off employees had reduced the
working hours of some employees. Thus, it is undisputed
that in 1970 due to poor business conditions the Respon-
dent decided to lay off three or four of its employees. At
this time President Menkus assembled all the employees,
explained he would have to lay off three or four for a peri-
od of time until business improved, and suggested that the
employees accept a 4-day week and in that way he would
not have to lay anyone off. The employees agreed to this
solution. No one was laid off. Rather, some employees
were cut back from 5 to 4 days a week with the remainder
working 5 days.31 This condition existed for about 3 or 4
months until business picked up, at which time everyone
resumed the normal 5-day workweek. When first asked to
explain his reason for not reducing the dnvers' hours of
work rather than laying them off on September 17, Presi-
dent Menkus testified that it would create a problem; it
would create dissention among the drivers. The drivers
whose hours were reduced, Menkus testified, would feel
that he was favoring the ones whose hours were not re-
duced. There is no evidence, however, that when this pro-
cedure was used in 1970 that it caused any dissention
among the drivers or problems for the Respondent. To the
contrary, it would seem that a driver would be much hap-
pier to receive four-fifths of his week's pay than none at all
and that the device of spreading the work would enable the
Respondent to retain five of its more senior employees
rather than run the danger that they would accept other
employment during their layoff. In my opinion, President
Menkus' explanation for failing to follow his past practice
of reducing employees' hours rather than laying off em-
ployees does not withstand scrutiny.
In short, even assuming that the Respondent's accoun-
tant prior to the layoff suggested that the Respondent re-
duce its labor force without sacrificing service does not ipso
facto mean that this is what prompted the layoff. For it is
the state of mind of Respondent, particularly that of its
president, that is crucial to this case, not the state of mind
of accountant Stephens. Here, the Respondent's decision
prior to the Union's campaign not to lay off employees
despite operating losses, its cancellation of customer serv-
ices because of the layoff, and its failure to maintain such
services by following its past practice of reducing the hours
of some employees rather than laying off, establishes that
during the normal course of events the Respondent would
not have laid off employees on September 17.
•
Ultimate Findings
Based on the aforesaid findings in this section, I find
that the General Counsel's prima facie case is not rebutted
by the reasons advanced by the Respondent to support the
71 To the extent that President Menkus' testimony indicates that the em-
ployees suggested the 4-day workweek and that all of the employees were
placed on a 4-day workweek , I reject it in favor of the testimony of "Uncle
Jack" Brockway who, of the two, impressed me as the more trustworthy
witness on this point
decision to lay off employees on September 17, rather, an
examination of Respondent 's reasons reveals that they are
either patently false or pretextual . I further find that the
implausibility of the Respondent 's justification for its deci-
sion to lay off employees on September 17 reinforces the
inference that in making this decision the Respondent was
motivated , in significant part , by its union animus and a
desire to once and for all discourage its employees from
supporting the Union. 2 In so concluding , I have carefully
considered that from October through December the Re-
spondent laid off five other drivers , that in December it
recalled the five discnminatees , and at the time of the hear-
ing in this case , January 1974, it was operating with 30
employees , approximately 8 less than at the time of the
layoff on September 17. Nevertheless , for reasons already
fully outlined , on balance , I am convinced that the basis
for the layoff of September 17 was motivated in significant
part by the Respondent 's extreme animus toward the
Union and a desire to destroy once and for all the Union's
ability to organize its employees.
b. The Respondent 's reasons for selecting James Brockway,
John Brockway, Richard Babb, Arthur Bazan, and John
Daley for layoff
James Brockway
James Brockway, a personal friend of President Menkus,
has been employed by Respondent for about 6 years and is
one of the Company's more senior drivers. President Men-
kus testified that Brockway was selected for layoff because
one of Respondent's customers, in February, had com-
plained and asked that Brockway be replaced by another
driver. Menkus then added a further reason, "[Brockway]
was the least productive. He wasn't as fast as a younger
man" and added then still another, "because he was an
extra man to start with. If he had of been on a regular run
or steady run, of course, I might have made a different
decision. But as an extra man . .. I decided he would be
the logical man to go."
Regarding the customer's complaint, Brockway for sev-
eral months in 1972 and 1973 was delivering for Goerlich's,
a company which distributes automotive parts. Goerlich,
under a contract with Respondent, leased two of
Respondent's trucks and Respondent supplied the two
drivers, one of whom was James Brockway. The drivers
worked under the direction of Goerlich in delivering to its
customers. On or about Wednesday, February 21,
Goerlich's distribution manager, Boling, told President
Menkus that because of customers' complaints he wanted
Brockway replaced with another driver or Goerlich would
stop doing business with Respondent.33 Menkus agreed
32 Although , as indicated earlier, I am of the opinion that the evidence
establishes that Respondent either knew or suspected that each of the five
employees selected was a union sympathizer, the law is settled that a lack of
knowledge of the union sentiments of laid off employees is no defense to a
violation of Section 8(a)(3) where, as in the instant case , the layoff was
motivated by a desire to thwart the Union's efforts to organize the Compa-
ny E g. Arnotdware Inc, 129 NLRB 228, 229 (1960)
33 Customers were complaining that Brockway was leaving automotive
parts stacked on four-wheel carts rather than unloading and removing these
carts from their premises
M & J TRUCKING CO., INC
and immediately notified Brockway that he was being re-
placed. Menkus did not, however, then or thereafter either
reprimand or criticize Brockway about the matter. He sim-
ply informed Brockway that Boling was mad and that
Brockway was being replaced with another driver at the
end of that workweek. He gave Brockway a choice of a
new route, the West Los Angeles route which he had previ-
ously driven for a number of years, or a San Diego route,
and told Brockway to decide which one he wanted .14
Brockway, however, injured himself that Friday and was
absent from work until approximately July 1.
Regarding the contention that Brockway when he was
laid off was employed as an extra man, the evidence estab-
lishes that, upon his return to work about July 1 until the
layoff, Brockway was employed as a "utility driver." In this
capacity he filled in for drivers on vacations and absent
from work, or was otherwise used wherever needed. This
was not, however, a job which the Respondent created for
Brockway. General Manager Holybee admitted that the
Respondent at all times, presumably even after the layoff,
normally employed utility drivers. In other words, contrary
to President Menkus' testimony, James Brockway was not
an extra man at the time of the layoff.
President Menkus' testimony that Brockway was the
least productive driver is not supported by an iota of evi-
dence. When asked to explain this contention, Menkus was
unable to do so and simply evaded answering the question.
Based on the foregoing, I find that President Menkus'
uncorroborated assertions that James Brockway at the
time of the layoff was an extra man and the least produc-
tive driver are patently false.35 I further find that the com-
plaint or complaints by Goerlich did not lessen President
Menkus' estimation of James Brockway as an employee
whose services he valued. Brockway, one of the Company's
most senior employees, was a personal friend of Menkus.
Goerlich's demand that he be replaced by another driver
was the first and last complaint ever made to the Respon-
dent against Brockway in his approximately 6 years of ser-
vice.36 And it is clear that Respondent did not view
Brockway's problem at Goerlich's seriously but considered
it as an isolated incident. Brockway was not reprimanded
or criticized about this matter. Instead he was given his
choice of a new job assignment . Also an indication that the
Respondent on September 17 regarded Brockway as a val-
ued employee is the fact that he was one of two employees
granted a raise in pay 1 month before he was selected for
layoff, and the further fact that in late June President Men-
34 Based on the credible testimony of James Brockway who on this mat-
ter impressed me as being a more credible witness than President Menkus
35 In this regard , I also note that General Manager Holybee did not cor-
roborate Menkus on these contentions Holybee testified that his only rea-
son for recommending that Brockway be selected for layoff was the com-
plaint by Goerlich
36 Brockway , when told by President Menkus about his removal from the
Goerlich job at Goerlich's request, objected vehemently and told President
Menkus that the Goerlich complaints were the only ones ever made against
his work in all the years of his employment President Menkus at the hear-
ing did not deny this was a fact , rather, when asked "had you ever had
complaints from other customers about [Brockway]." Menkus evaded the
question and never answered it It was admitted by Menkus that upon the
return of Brockway to work until his layoff, there were no complaints about
his work
603
kus informed a group of employees that James Brockway
was a "fantastic" driver, that he was one of the fastest
drivers ever encountered by Menkus, who would not mind
having a couple of dozen in his employ like Brockway.37
In summation, I find that the reasons put forward by
Respondent to justify the selection of James Brockway for
layoff are in part patently false and in part pretextual, and
further find that the evidence establishes that Brockway,
one of the Company's most senior employees as well as a
personal friend of President Menkus, was on September 17
regarded by President Menkus as a valued employee.38
John "Uncle Jack" Brockway
John "Uncle Jack" Brockway has been employed by the
Company for approximately 6-1/2 years. When selected
for layoff, he was among the top five or six employees in
seniority. In other words, he had been in the Company's
employ longer than about 28 drivers. President Menkus
testified that he was a good and reliable driver. In fact, in
April, when Brockway asked for a raise in pay, Menkus,
according to Brockway's credible testimony, told him he
deserved a raise and could expect a good one in the fu-
ture.39 Thereafter, I month before he was selected for lay-
off, Brockway was one of two employees who received a
raise in pay Based on the foregoing, I find that at the time
he was laid off John Brockway was one of the
Respondent's most senior employees whose services were
highly valued.
President Menkus testified that he selected Brockway for
layoff because the volume of business on his route, the
Covina route, had fallen off to such an extent that it made
sense economically to consolidate this route with the adja-
cent one. When asked why a driver with less seniority was
not selected for layoff rather than Brockway, and Brock-
way assigned to the route of a less senior driver, President
Menkus answered:
.. . because I had men like Tommy Brockway that
were doing a good job, and he would have to learn all
over again. On top of that, our policy is to try to have
the men end their runs where they live so they don't
have to drive the trucks all back to work. They just
take the trucks back home with them. This saves them
gas and oil and it saves us gas and oil.
And then in response to a leading question, Menkus testi-
fied that another consideration in selecting Brockway for
layoff over less senior employees was that, if he had been
transferred to another run, he would have had to drive a
37 Based on the credible testimony of employee Edwin Gaudette I reject
President Menkus' testimony that he was referring to Thomas Brockway
rather than James Brockway when he made these statements . Of the two
witnesses , employee Gaudette impressed me as the more trustworthy
38 f note that if the layoff made it necessary to transfer James Brockway
to another driver's route, this would have been accomplished easily . Presi-
dent Menkus testified that senior drivers, such as Brockway, are able to shift
around between various routes without any difficulty In fact, this is exactly
what Brockway had been doing as a utility driver
79 To the extent that President Menkus ' recollection of this conversation
differs from Brockway's, I reject it as Brockway impressed me as the more
trustworthy witness
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck larger than the 1-ton truck he had been driving on his
Covina route.
Regarding the driving of a larger truck, both Holybee
and Menkus testified that they were unhappy with Brock-
way because he refused to use a larger truck, when neces-
sary, on his Covina route. It is undisputed, however, that
Respondent at no time expressed this alleged dissatisfac-
tion to Brockway, let alone reprimand or criticize him for
his alleged refusal to use a larger truck. Brockway, who
traditionally drove a small (1-ton) truck on his Covina
route, admittedly indicated to employees he would just as
soon drive a small rather than a large truck but, as he
credibly testified, Brockway never indicated to either Holy-
bee or Menkus that if Respondent asked that he would
refuse to drive a larger truck4° This is not surprising be-
cause Brockway, with 22 years of experience driving
trucks, has no difficulty, as he testified, in driving the larger
trucks used by Respondent which are small in comparison
to the size of the trucks Brockway has handled in the past.
In fact, upon his reinstatement by the Respondent in De-
cember, he was assigned to and drove a larger truck with-
out objection. Based on the foregoing, I find that Respon-
dent at no time believed that Brockway would refuse to
drive one of the Respondent's larger trucks, nor did Re-
spondent regard Brockway's preference expressed to ex-
ployees for a small truck as a matter of concern.
Likewise without substance is the Respondent's refusal
to transfer Brockway to the route of a less senior driver
because the new drivers were doing a good job and if re-
placed would have "to learn all over again."41 For it is
natural for an employer to retain a senior employee in a
layoff by virtue of his superior experience, proficiency and
service, and the failure to do so, when the senior employee
is a union adherent, supports an inference that the actual
motive for the employees selected for layoff was pretextual.
N.L.R.B. v. American Casting Service Inc., 365 F.2d 168,
174 (C.A. 7, 1966); N. L. R. B. v. Tennessee Packers, 390 F.2d
782, 784 (C.A. 6, 1968); N.L.R B v. S. E. Nichols-Dover,
414 F.2d 561, 564 (C.A. 3). The absence of a contractual
requirement or a past practice of following seniority does
not rebut this inference, for it is predicated not on a legal
obligation but on normal, sound business practice. Differ-
ential Steel Car Co., 75 NLRB 714, 716 (1948); Consolidat-
ed Industries Inc., 108 NLRB 60, 66-67 (1954). Indeed, in
explaining why the Respondent recalled one of the laid-off
employees, Richard Babb, who had even less seniority than
Brockway, President Menkus testified that experienced
employees were needed in the trucking business, that it was
difficult to find experienced employees, "so we usually hire
them back rather than try to start all over again."42 More-
40 Respondent 's only evidence that Brockway refused to drive a larger
truck was the testimony of Holybee that once Brockway refused to follow
Holybee's instruction to use a larger truck Brockway allegedly told Holy-
bee he would rather make two trips using the 1-ton truck , whereupon Holy-
bee testified he told Brockway "go ahead " I reject Holybee's testimony Of
the two witnesses , Brockway was the more credible
41 President Menkus' refusal to transfer Brockway to another run for the
additional reason that it was contrary to the Company's policy "to try to
have the men end their runs where they live" rings false In this regard,
when Respondent recalled Brockway from layoff , it reinstated him not to
the Covina route, the area in which he resides, but another route
over, the pretextual nature of Brockway's selection for lay-
off, instead of a less senior dnver, is bolstered by the fact
that Brockway, as shown above, was admittedly regarded
by Respondent as a highly valued employee.
Based upon the foregoing, I find that the reasons ad-
vanced by the Respondent for selecting John "Uncle Jack"
Brockway for layoff were in part patently false and in part
so insubstantial as to indicate they are not the real reasons.
Arthur Bazan
Arthur Bazan had been employed by Respondent for
about 2-1/2 years when he was laid off. It is undisputed
that he always did a good job and that no one ever crit-
icized his work. President Menkus admits that Bazan was a
"good worker," one of the Company's "better drivers,"
whom Menkus selected for layoff, he testified, only be-
cause he had told Menkus and Holybee that he intended to
terminate his employment when he finished night school
and qualified as a driver of diesel tractors.
Bazan in August enrolled in a 9-week course, which he
attended after working hours, designed to qualify him to
drive diesel tractors which are more powerful than the nor-
mal tractors and are designed to haul so-called " semis."
Respondent does not own such equipment. The drivers of
"semis" generally are higher paid than other drivers. Presi-
dent Menkus and General Manager Holybee knew that
Bazan was attending classes to qualify as a diesel driver.
The only comment that either one made to Bazan about
the matter was a remark by Holybee to the effect that per-
haps by the time Bazan qualified to drive a semi the Re-
spondent would have such a truck for him to drive. Bazan
credibly testified that he did not indicate at any time to
either Menkus or Holybee that he intended to terminate
his employment with the Respondent upon completion of
his course in diesel driving.43 In fact, despite his completion
of the schooling in October and his qualification to drive
diesels, Bazan accepted the Respondent's request, made in
December, that he return to work. When asked why the
Respondent recalled Bazan from layoff despite its pro-
fessed knowledge and concern over his expressed intent to
eventually terminate his employment, President Menkus
testified, " ... I thought sure he would not come back to
work, because I felt that he had another position. . . . But
we called him as one of our better men, and we called him
first." Bazan returned to work and was still employed at
the date of the hearing. President Menkus admitted Re-
spondent did not speak to Bazan at the time it recalled him
or since his recall about whether he intended to carry out
his alleged prior warning and quit the Company's employ.
Based upon the foregoing, I find that the reason relied
upon by President Menkus for selecting Bazan for layoff is
patently false and further find that when it selected him for
layoff the Respondent regarded Bazan as a highly valued
employee and did not regard Bazan's intent to qualify as a
42 In this regard, President Menkus also testified that the Respondent's
more senior drivers, such as Brockway, were able to shift around and handle
any of the Company's routes without any difficulty
3 I reject the contrary testimony of President Menkus and General Man-
ager Holybee They were not convincing witnesses, whereas Bazan was an
impressive witness
M & J TRUCKING CO., INC.
driver of diesel -powered trucks as a matter of concern.
Richard Babb
Richard Babb when laid off had been employed by the
Respondent for approximately 4-1/2 years. President Men-
kus, in substance , testified that in selecting Babb for layoff
he was motivated by two things. ( 1) In 1972 , without giving
notice Babb abruptly terminated his employment and
abandoned the Company's truck . (2) In late July or early
August , on one occasion , Night Manager Richard Perdue
notified Menkus that "Babb refused to go downtown to
make pickups ." For the reasons set forth below , I find that
President Menkus' testimony about his motivation for se-
lecting Babb for layoff is patently false.
In about May 1972, because of personal problems Babb
one weekend abruptly left California for Oregon and, with
no notice to Respondent , terminated his employment. In
the process he left his company truck parked at a truck
stop hear his home ." Upon his return from Oregon some 3
or 4 months later , Babb visited his former employees at the
company premises at which time President Menkus invited
him out for lunch and solicited him to return to work 41
Babb accepted and was reassigned his old route and in 2
weeks was paid his former rate of pay . At no time did
Menkus or Holybee either speak to Babb or criticize or
reprimand him for, without notice , having quit his employ-
ment and having "abondoned" the Company 's truck.
Based on the foregoing , I find that President Menkus' testi-
mony that this conduct played a part in his selection of
Babb for layoff is patently false , and further find that Re-
spondent if it ever in fact held this conduct against Babb
plainly forgave and forgot.
President Menkus testified that on one occasion late in
July or early in August the Company 's night manager,
Richard Perdue , told Menkus that he had sent Babb home
early because "Babb refused to go downtown to make
pickups." It is undisputed that neither Menkus nor General
Manager Holybee ever spoke to Babb about this alleged
misconduct . This is not strange because Babb credibly tes-
tified that he never engaged in this misconduct . He credi-
bly testified , however, that on one occasion when Night
Manager Perdue asked him to drive to downtown Los An-
geles and make some pickups , his truck was not available
because it was being repaired , there was no spare truck
available and that he so informed Perdue. Perdue, a wit-
ness for Respondent , testified in an unconvincing manner
and at times his testimony was incomprehensible. Even
when viewed most favorably to Respondent , however,
Perdue 's testimony flatly contradicts President Menkus' as-
sertion that Perdue told him he had sent Babb home early
because "Babb refused to go downtown to make pickups."
Perdue admitted that when asked by Menkus why certain
deliveries had not been made as scheduled , he told Menkus
that Babb had not been able to take them because "[Babb]
44 It was Babb 's practice , approved by the Respondent , to take his truck
home
451 reject the testimony of President Menkus insofar as he infers that
Babb asked for his job back Of the two witnesses , Babb impressed me as
the more trustworthy
605
said his truck was being worked on, that's all I know."
Perdue further admitted that he had no reason to believe
Babb was lying to him , and it is clear that Perdue did not
indicate any such belief to President Menkus. Based upon
the foregoing , I find that President Menkus' contention
that in selecting Babb for layoff he was motivated in part
by his refusal to make a downtown pickup to have been
manufactured from whole cloth.
John Daley
President Menkus testified John Daley was selected for
layoff because : ( 1) Over a period of 2 years , in a belligerent
manner , on approximately six occasions Daley had burst
into Menkus' office and demanded a raise in pay. (2) In the
mornings Daley refused to drive his truck from Orange
County where he lived and normally worked to service a
customer , Motor Wheel & Rim, located in the Los Angeles
area. (3) A shipping clerk , Jones, employed by Motor
Wheel & Rim complained two or three times that Daley
was not doing his job properly.
There is nothing in the manner in which Daley voiced
his wage grievance to President Menkus which was calcu-
lated to cause Menkus to take offense . In fact , there is no
contention or evidence that, prior to testifying in this pro-
ceeding, President Menkus ever told Daley or otherwise
indicated that he viewed Daley's conduct with distaste.
The record indicates that it was not uncommon for em-
ployees to visit President Menkus in his office. Also, I can-
not ignore the fact that the employees employed by Re-
spondent are for the most part truckdrivers not clericals. In
this regard , at one point when President Menkus was asked
"it is true from time to time that you have accepted a little
obstinacy from the drivers ," he testified "all the time, ar-
gue, you know . We go through that. It's good-natured fun,
I guess you call it."
President Menkus' second reason for selecting Daley,
the alleged refusal to pick up merchandise , lacks specifici-
ty. Whether Daley engaged in this alleged misconduct on
one or numerous occasions and on what dates is not clear.
Nor is there any contention or evidence that he was ever
criticized for engaging in this alleged misconduct. Daley
convincingly testified that he never engaged in this type of
conduct . I believe him.
Finally, regarding the third and last reason for the selec-
tion of Daley for layoff , he credibly denied having engaged
in the misconduct attributed to him at Motor Wheel &
Rim and further credibly denied that shipping clerk Jones
ever complained about his work. The only remark voiced
to Daley by Jones which might be construed as a com-
plaint was when Jones on one occasion told Daley that a
customer had complained that it had not received one of
Daley's deliveries . It is undisputed that neither President
Menkus nor General Manager Holybee ever told Daley
about the alleged misconduct attributed to him by shipping
clerk Jones, nor that they ever criticized Daley for engag-
ing in such conduct. Based on the foregoing , I find that
Daley did not engage in the misconduct attributed to him
by President Menkus in connection with his work at Motor
Wheel & Rim and further find that at no time did Respon-
dent ever believe that Daley 's work for this customer was
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less than satisfactory.
For the reasons set out above, I find that the reasons
relied upon by Respondent to justify its selection of Daley
for layoff in large part are patently false and that Daley's
so-called belligerent requests for a wage increase were at
no time regarded by Respondent as an act of misconduct
or insubordination. I further find that Respondent' s selec-
tion of Daley for layoff is incredible. Daley, employed for
about 5 years by Respondent, was one of its more senior
drivers who President Menkus admitted was a "good" driv-
er. That Menkus valued Daley more than others with less
seniority is indicated by the fact that Daley was designated
as the man in charge of a group of less senior drivers in
connection with the daily transfer of freight between the
drivers' trucks.
Ultimate Findings
For the reasons set out above, I find that the explana-
tions asserted for the selection of Richard Babb , Arthur
Bazan, James Brockway, John Brockway, and John Daley
for layoff on September 17, 1973, are either patently false
or obviously pretextual and played no part in the selection
of these employees . Under the circumstances , I am of the
view that the evidence introduced by the Respondent fell
short of dissipating the unfavorable inferences to be drawn
from the General Counsel's prima facie case , rather the in-
substantiality of the Respondent 's justification bolsters the
inference of discriminatory motivation . Accordingly, even
assuming the decision to reduce the work force on Septem-
ber 17 was motivated by legitimate economic consider-
ation , I find that a preponderance of the evidence estab-
lishes that the selection of each one of the employees laid
off on that date was motivated in significant part by un-
lawful union considerations , in violation of Section 8(a)(1)
and (3) of the Act.46
C. The Representation Case (Case 21-RC-13365)
The Union urges in its objections to the representation
election conducted on September 17, in substance, that the
Respondent engaged in the following misconduct: Threat-
ened employees with discharge if they signed union author-
ization cards; threatened employees with discharge upon
the conclusion of the election; interrogated employees as to
who signed up with the Union; and threatened to either
sell or close down its place of business if the Union won
the election.
Upon the basis of the findings and conclusions previous-
ly set out in this Decision, I further find that the Respon-
dent, during the critical period prior to the representation
election, engaged in unfair labor practices which prevented
the employees from freely exercising their choice in the
election. Accordingly, I shall recommend that Case 21-
RC-13365 be severed and remanded to the Regional Di-
46 The fact that the Respondent did not select for layoff other known
union adherents , of course , is no defense For, it is settled that the fact that
an employer "retained some union employees does not exculpate him from
the charge of discrimination as to those discharged " N L R B v W C
Nabors Co, 196 F 2d 272, 276 (C A 5, 1952)
rector for Region 21 and , in view of my findings below in
connection with the alleged refusal to bargain by the Re-
spondent , I shall further recommend not only that the elec-
tion held on September 17, 1973, be vacated and set aside
but that the petition in said case be dismissed.
E. The Refusal to Bargain
It is undisputed and I find that all truckdrivers and me-
chanics employed by the Respondent constitute a unit ap-
propriate for the purposes of collective bargaining. On or
about August 21 or no later than August 22, the Respon-
dent received a letter from the Union which, among other
things, informed Respondent that the Union represented a
majority of the employees in the appropriate unit and re-
quested a meeting to negotiate the terms of a collective-
bargaining agreement. Respondent did not answer the let-
ter.
The Respondent, at the hearing, indicated that the
Union's bargaining demand was ineffectual assertedly be-
cause, by referring to "dock workers," the Union included
a type of employee not employed by the Respondent.47
However, if the Company were confused by the demand, it
"certainly had the opportunity to resolve such by a simple
query of the Union representative...... N. L. R. B. v.
Transport Inc., of South Dakota, 453 F.2d 193, 196 (C.A. 8,
1971). And since the Respondent did not even offer the
inappropriateness of the unit demanded as a reason for
refusing to recognize the Union, the admonition of the
court in Texaco, Inc v. N.L.R.B., 436 F.2d 520, 523 (C.A.
7, 1971) is pertinent:
When the unit description, although unclear, leaves
no doubt as to the claim of representation of a majori-
ty of the employees, the employer is not justified in
refusing to bargain. "The proper course for the em-
ployer in those circumstances is to refuse to bargain
with respect to those employees whose unit status is
disputed, not to wholly refuse to bargain."
In any event, it is settled that where the deviation between
the bargaining unit requested by the union and the unit
eventually found appropriate is insubstantial, as it is in this
case, it cannot justify an employer's refusal to bargain. N.
L.R.B. v. Richman Bros. Co, 387 F.2d 809, 813 (C.A. 7,
1967).
Based on the foregoing, I find that the Respondent on or
about August 21, 1973, and continuing thereafter, has re-
fused to bargain collectively with the Union in an appro-
priate bargaining unit.
The parties stipulated that on the date of the
Respondent's receipt of the Union's demand letter-Au-
gust 21 or 22-there were 38 employees employed in the
appropriate bargaining unit. It is undisputed that 20 of
these employees had signed union authorization cards.
These cards, which are identical, unequivocally recite that
the signer authorizes the Union to act as bargaining repre-
sentative- "I, the undersigned employees of [Respondent]
4" The record establishes that the Respondent does not employ "dock
workers" as such Its truckdrivers perform this type of work when necessary
M & J TRUCKING CO., INC.
hereby authorize [the Union] as my collective bargaining
representative with my employer with respect to my wages,
hours, health and welfare, pension protection, working
conditions and other conditions of employment." Based on
the foregoing, I find that on August 21 the Union had been
designated as the exclusive bargaining representative by 20
of the 38 employees employed in the appropriate unit. I
shall now evaluate the contention of the Respondent that
at least one of the union authorization cards is invalid,
thereby defeating the Union's majority status
It is settled that, where an employee has signed an unam-
biguous authorization card of the type here, it counts as a
designation unless the Respondent can demonstrate that
the card's clear language was "deliberately and clearly can-
celled by a union adherent with words calculated to direct
the signer to disregard and forget the language above his
signature." N L.R.B. v. Gissel Packing Co., 395 U.S. 575,
606 (1969). In particular, "there is nothing inconsistent in
handing an employee a card that says the signer authorizes
the union to represent him and then telling him that the
card will be used first to get an election." Gissel, supra at
607-608. Accord: Texaco v. N.L.R.B., 436 F.2d 520, 523-
524 (C.A. 7, 1971). Indeed, the Supreme Court in Gissel
expressly validated the authorization cards where each of
the employees "were told one or more of the following' (1)
that the card would be used to get an election, (2) that he
had the nght to vote either way, even though he signed the
card...... Supra at 584, fn. 5. In evaluating the validity
of the Union's card:
The Board looks to substance rather than to form. It is
not the use or nonuse of certain key or "magic" words
that is controlling, but whether or not the totality of
circumstances surrounding the card solicitation is
such, as to add up to an assurance to the card signer
that his card will be used for no purpose other than to
help get an election. [Levi Strauss], 172 NLRB 732,
733 (1968), fn. 7 [cited with approval in Gissel, supra,
608, fn. 27].
Guided by these settled principles, I have evaluated the
testimony connected with the signing of all the authoriza-
tion cards. For 17 of the cards 48 the evidence does not
conflict on matters of substance. When the evidence is
viewed most favorably for Respondent, the representations
made to these 17 cardsigners do not suffice to "deliberately
and clearly cancel" the unambiguous language of the
cards. Gissel, supra at 606. The statements of the solicitors
made in connection with the signing of these 17 cards, in
my opinion, are not materially different from those which
the Supreme Court in Gissel found did not taint certain
cards involved in that proceeding.49 Gissel, Supra at 608, fn.
48 The 17 are G C Exh 5 , 6, 8, 10 through 16, 18 21 through 23, and 25
through 27
49 Respondent also contends that the card of employee Kalmisan (G C
Exh 6 ), which was solicited by James Brockway , is tainted because Brock-
way falsely represented that a majority of the employees had signed cards,
thereby misleading Kahnisan In response to Kahnisan 's question, "how
many men roughly have cards signed right now," Brockway replied "proba-
bly" 18 to 22 or 25, and when asked by Kalinisan if he thought "the majon-
ty of men are on our side ," answered in the affirmative Actually only 19 of
607
5. The cards signed by employees Jaime Gonzales, Donald
Jeffenes, and Jose Martinez, however, raise more difficult
questions as to whether there occurred misrepresentations
which would invalidate any one of these cards. I shall set
out the evidence in detail as it relates to these cards.
Jaime Gonzales' Card
Jaime Gonzales was solicited to sign a card by employee
James Brockway, who credibly testified that he told Gon-
zales "here is a card from the union for representation" or
"here is a card to sign for the Union to come in." Gonzales
in response stated that he was afraid to sign the card for
the reason that he and fellow employee Jose Martinez had
recently gone through a union's organizational campaign
while employed by another employer and had been laid
off. Brockway told Gonzales "if you are with us you sign
the card." Gonzales in Brockway's presence filled out the
card and stated he wanted the matter kept confidential,
repeating his fear of getting laid off. I find, based on the
foregoing, that the words used by Brockway in soliciting
Gonzales reinforced the literal meaning of the card. Brock-
way, however, also talked of an election. He told Gonzales
that the Union needed a majority to win an election, that
the Union was close to having enough cards for an elec-
tion, and asked Gonzales "are you with us on the vote or
not . . for the Union, for the Union coming in."
I am of the opinion that the above-described talk of an
election was not calculated to direct Gonzales to disregard
and forget the language over his signature Nor, in my
view, does Brockway's testimony that Gonzales "signed the
card in order to have the vote" invalidate his card. This
testimony was in the form of a conclusion in response to a
leading question: "Q. [By Mr. Reiner] So he signed the
card in order to have the vote? A. Yes." It was preceded by
Brockway's specific denial that Gonzales had stated that
he did not want the Union to represent him unless it won
the election and that was why he was signing the card.
Previously, as described above, Brockway had told Gon-
zales that the card was for union representation or for the
Union to come in. There is nothing either in Brockway's
testimony or the whole record, and Gonzales did not testi-
fy, that Gonzales signed the card "in order to have the
vote." Viewed most favorably for Respondent, the record
only establishes James Brockway's belief as to what the
subjective motivation of Gonzales was when he signed the
card. Inasmuch as Gonzales' subjective motivation is com-
pletely irrelevant on the question of the validity of his card,
it follows that Brockway's guess as to Gonzales' motivation
is equally as irrelevant. See Gissel, supra at 608. For these
reasons, I am of the opinion that the Respondent has not
provided the requisite proof to overcome the clear authori-
zation set forth in the card signed by Jaime Gonzales.
Even assuming, however, that Gonzales expressly indi-
about 39 had signed at that time Viewed in the context of the entire conver-
sation. this exchange does not establish that Kalmisan in signing the card
relied upon this representation In any event, the law is settled that state-
ments of this type are not material in determining the validity of cards even
when signed in reliance thereon N L R B v Boyer Brothers Inc, 448 F 2d
555, 562 (C A 3, 1971), Local 153, International Ladies' Garment Workers'
Union [Marie Phillips Inc I. v N L R B 443 F 2d 667, 669 (C A D C, 1970)
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated "he signed the card in order to have the vote," it
would not, by itself or when viewed in its setting, invalidate
the card signed by Gonzales. The evidence in its totality
simply does not establish words or conduct calculated to
lead Gonzales to believe that he was signing the card only
to have an election. I thing that the language of the Court
in Texaco Inc. v. N.L.R.B, 436 F.2d 520 (C.A. 7, 1971), is
especially pertinent:
.. . the cards are valid under the Gissel test. While
there was some talk of an election, it does not appear
that promises of an election were the sole inducement for
the signatures. We disagree with the company's con-
tention that an assurance of an election alone disquali-
fies a card. [Supra at 523.] [Emphasis supplied]
We think that Gissel means that there is some pre-
sumption of regularity which attaches when an em-
ployee signs an application card and this presumption
is not overturned merely because an employee might have
wished to be committed only to an election . The compa-
ny has not demonstrated that the language of the
cards is "deliberately and clearly canceled" by the ac-
tivities of the solicitor. Gissel, supra at 606. [Supra at
524.] [Emphasis supplied.]
Donald Jeffries' Card
Donald Jeffries was solicited to sign a union authoriza-
tion card by "Uncle Jack" Brockway in a beer bar one
afternoon after working hours. Jeffries, a witness called by
Respondent, initially testified, in substance, that Brockway
told him he wanted to get enough cards signed "to get a
vote" to bring the Union in and stated to him that the
employees would meet first with President Menkus before
they turned in the cards. He further testified that, although
he filled out the card-printed his name, address, the date,
home phone number, rate of pay, and classification-and
signed the card, he did not read it butjust "glanced" at the
card inasmuch as it was dark. In what appeared to be an
effort to justify his testimony that he filled out and signed
a one-sentence card without reading it, Jeffries, when
asked "you didn't read the card," answered "Well [Brock-
way] told me that it was a card that was a pledge to join the
Union, and it would save me-like if the Union got in, it
would save me a hundred dollars in union dues for signing
the card then." More specifically, Jeffries then testified
that Brockway told him that employees who signed cards
would pay an initiation fee of $50 and those who did not
sign cards would have to pay a fee of about $150.
"Uncle Jack" Brockway's version of what took place dif-
fers substantially from Jeffries' testimony. Brockway tells
the following story. He informed Jeffries that he had union
authorization cards and that if a majority of the employees
signed the cards, the Union would be their bargaining rep-
resentative. If Jeffries desired to have the Union, Brockway
told him, he could sign an authorization card. Jeffries took
a card, read it, and then filled it out and signed the card.
Brockway denies there was any talk about an election. He
also denies that Jeffries was told that by signing a card he
would get a cheaper union initiation fee. But Brockway
testified that during the course of their conversation Jef-
fries asked about the Union's dues and Brockway, having
no knowledge about the Union's dues scale but having
heard that its initiation fee was about $150, in response to
this question told Jeffries that the Union's initiation fee
was approximately $150. Regarding his saying that the em-
ployees would meet with President Menkus before the
union cards were turned in, Brockway admitted that he
told Jeffries that the employees would have a meeting with
President Menkus about wages and sick leave and other
working conditions before they turned the cards in.
Of the two witnesses, "Uncle Jack" Brockway's demean-
or was the more convincing. He impressed me as being
more trustworthy and reliable than Jeffries and I credit his
version of what was said when he solicited Jeffries to sign
the union card.
Briefly stated, Brockway handed Jeffries a union card
and explained that if he wanted to be represented by the
Union, he should sign the card. In response to Jeffries'
inquiry, Brockway indicated the amount of the Union's
initiation fee. And Brockway volunteered the fact that
prior to turning in the cards the employees would meet
with President Menkus to discuss the employees' griev-
ances. Jeffries then read the card and signed it.
I find that nothing said by Brockway forecloses the use
by the Union of the card signed by Jeffries for the purpose
designated on its face. Particularly, I am of the opinion
that the representation made to Jeffries that the employees
would meet with President Menkus before turning in the
cards, even though no such meeting ever took place, is
insufficient by itself to establish that Jeffries relied on or
was coerced into signing the card by this representation.
Nor do the circumstances surrounding the signing of the
card establish such reliance or coercion. In this regard, I
have carefully considered the fact that Jeffries, in response
to a leading question asked by Respondent, testified that
he signed the card after having been told by Brockway "it
was for the purpose of having enough drivers sign in order
for the drivers to have a meeting without the union." I have
previously found, however, that, although Brockway repre-
sented that the employees would meet with President Men-
kus before turning in the cards, he did not tell Jeffries, as
Jeffries testified, that this was the purpose for signing the
cards. Putting to one side Jeffries' unimpressive demeanor
and the fact that this testimony was elicited by a leading
question,50 the testimony rings false. That Brockway told
Jeffries that he was asking him to sign a union authoriza-
tion card "for the purpose of having enough drivers to sign
in order for the drivers to have a meeting without the
Union" is the type of testimony which carries its own death
wound. Thus, the union authorization card in large capital
letters reads: "AUTHORIZATION FOR REPRESENTA-
TION UNDER THE NATIONAL LABOR RELA-
TIONS ACT" with the name of the Union in large print
and asks in effect the cardsigner to authorize the Union to
act as his bargaining representative.
'0 "We also accept the observation that employees are more likely than
not, many months after a card drive and in response to questions by compa-
ny counsel, to give testimony damaging to the union , particularly where
company officials have previously threatened reprisals for union activity in
violation of Section 8(a)(1) " Gissel Supra at 608
M & J TRUCKING CO., INC. 609
Jose Martinez
It is undisputed that employee Edwin Gaudette success-
fully solicited fellow employee Jose Martinez to sign a
union card. Gaudette's version of the event follows. One
morning while at work, he handed the union card to Marti-
nez and, in English, told him about the Union and the
benefits that Union representation offered to employees.
Gaudette specifically asked if Martinez wanted the Union
Martinez answered in the affirmative and was informed by
Gaudette that the purpose of the card was "to get the
Union in." Martinez said he was afraid because he felt that
the reason he was terminated by his last employer was be-
cause of his support of a union. Gaudette assured him that
if he signed the union card, it would remain confidential
and he did not have to worry about his job. Martinez did
not commit himself to signing a card but indicated he
would take the card home. The next morning, at work,
Gaudette asked Martinez about the card. Whereupon,
without any further conversation, Martinez produced the
card and filled part of it out and signed it in Gaudette's
presence.
Martinez has a different version of the events connected
with his signing of the union card. Martinez agrees he was
given a union card by Gaudette and that he took it home
and the next day signed the card and returned it to Gau-
dette. But the only comment made to him by Gaudette was
that Martinez should sign the card to make more money.
Because he had "some problems" in reading English, Mar-
tinez testified, he took the card home and his next door
neighbor translated the card for him into his native lan-
guage, Spanish, and that in addition to translating the card
his neighbor told him that if the Union represented the
employees, it meant a secure job, more money and benefits
for his family, and also stated that before the Union got
into the Company there would be an election in which
Martinez could vote any way.
I am of the opinion that the union authorization card
signed by Jose Martinez is a valid card. Martinez did not
impress me as a candid witness. Gaudette, on the other
hand, impressed me as an honest and reliable one whose
testimony I credit in its entirety. In particular, I reject Mar-
tinez' testimony that he was not able to read the card,51 and
his further testimony that his neighbor told him that there
would be an election before the Union got into the Compa-
ny in which he could vote either way I realize that his
testimony on these matters is uncontradicted, but I found
him to be a most unconvincing witness whose testimony
brings to my mind the warning of the Supreme Court that
"employees are more likely than not, many months after a
card drive and in response to questions by company coun-
sel to give testimony damaging to the union, particularly
51 Martinez testified he could not read the card because he had "some
problems" in reading As a truckdriver for the Respondent as part of his
job, he must be able to follow directions and read bills of lading, all of
which are in English More significant, however , is the fact that he testified
in English without the aid of a translator, and a review of the record demon-
strates that his testimony that he "just barely" speaks English is contra-
dicted by his actual testimony
where company officials have previously threatened repri-
sals for union activity in violation of Section 8(a)(1)."52
Gissel, supra at 608.
Briefly stated, I find that the credible evidence estab-
lishes that Martinez was informed by Gaudette that the
purpose of the card was to secure representation by the
Union, that Martinez read the card and, when he signed it,
he intended to authorize the Union to represent him. I
further find that Martinez was not told that before the
Union got in there would be an election in which he could
vote either way.
Even accepting, at face value, Martinez' story, I would
find that his card is valid. It is undisputed that his neighbor
translated the literal language of the card to Martinez and
otherwise made it plain that the purpose of the card was to
get a union into the Company to improve employees' terms
and conditions of employment. Under these circumstances,
Martinez' alleged inability to read the card is not critical,
for the test is not whether Martinez is literate or can read
the card, but "whether the purpose of the cards was ade-
quately communicated to the signers." A. J. Krajewski
Manufacturing Co., Inc. v. N.L.R.B., 413 F.2d 673, 677
(C.A. 1, 1969). The fact that his neighbor also told Marti-
nez that before representation by the Union there would be
an election in which he could vote any way, in the particu-
lar circumstances of this case, does not in my view invali-
date the card. It is questionable whether this representation
was clearly calculated "to direct [Martinez] to disregard the
language above his signature." Gissel, supra at 606 and fn.
5. Significant in this regard is the fact that this representa-
tion was not made to Martinez by the union adherent who
solicited him to sign the card, rather it was made by a
neighbor whose conduct under the circumstances of this
case cannot be attributed to the Union.53 Moreover, by his
own admission, the representation about the holding of an
election did not induce Martinez to sign the card.54 In sum,
based upon his own testimony, Martinez knew that by
signing the card he was authorizing the Union to represent
him and that the promise of an election was not made by
an agent of the Union and, in any event, the promise of an
election did not induce Martinez to sign the card.
To recapitulate, for the reasons set out above, I find that
all 20 of the cards in the Union's possession when the Re-
spondent received its demand for recognition and refused
to bargain with the Union are valid cards, and that the
Union at that time represented a majority of the
52 The validity of the Supreme Court's warning is vividly demonstrated by
the portion of Martinez' testimony where he volunteered the fact that the
only reason he signed the union card was as a new employee he was afraid
that the other employees would be mad at him for not signing Admittedly,
no employee or other person, either directly or indirectly, said anything to
Martinez which would have given him a reasonable basis for believing the
other employees would be mad at him for not signing a card In any event,
Martinez' subjective motivation in signing the card is completely [relevant
to the issues in this proceeding Gissel, supra at 608
53 In this regard , there is no evidence that Martinez indicated to Gaudette
that he did not understand or was not able to read the card Nor is there any
evidence that Guadette should have reasonably been on notice that Marti-
nez was not able to read the card To the contrary, the record establishes
that Martinez converses with Gaudette and other employees in English and
in fact testified in this proceeding in English
54 As described previously in In 52, supra, Martinez testified he signed the
card because "I was a new guy at M & J and I was afraid, you know, to get
somebody mad at me, something like that
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees in an appropriate bargaining unit.
Based upon the foregoing and the nature and extent of
the Respondent's unfair labor practices, I am of the opin-
ion that the doctrine of N.L R.B. v. Gissel Packing Co.,
Inc, 395 U.S. 575 (1969), calls for a bargaining order to
remedy the Company's unfair labor practices as well as its
refusal to bargain with the Union. Thus, immediately upon
receipt of the Union's demand for recognition and its peti-
tion for an election, the Respondent engaged in an unlaw-
ful campaign to undermine the Union's majority status and
to make sure that the Union did not secure a majority of
the ballots cast in the scheduled election. A substantial
number of the unit employees were threatened with a loss
of employment if they voted for the Union. The Respon-
dent, through President Menkus and General Manager
Holybee, made it clear to a substantial number of employ-
ees that the business would be closed or reduced and jobs
lost if they voted for the Union, and interrogated several
employees about their union activities and sentiments. Re-
spondent made not one threat to close its doors if employ-
ees voted for the Union, but a series of such threats which
involved nothing short of complete termination of employ-
ment and, if carried out, would affect every unit employee.
They were made in substantial part by the Respondent's
president, the man who possessed the power not only to
threaten but also to turn the threat into reality. Finally,
when the Respondent realized that its unlawful preelection
antiunion campaign had failed, as almost a majonty of the
unit employees had voted for the Union, it loosed its ulti-
mate thunderbolt. The discriminatory layoff of five em-
ployees was designed to dramatically express the
Respondent's hostility toward unionization and calculated
to once and for all destroy the Union's organization ef-
forts. The layoff carried a message which could not have
been lost on the employees in the bargaining unit. For the
foregoing reasons, I find that Respondent's unfair labor
practices have been so pervasive as to make "the possibility
of erasing the effects of past practices and of ensuring a
fair election . . . by traditional remedies . . . slight." N.L.
R.B v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969). I
shall, therefore, recommend that Respondent bargain with
the Union, the majority representative of its employees.55
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
low because of their known or suspected activities on be-
half of the Union and/or to discourage its employees from
supporting the Union, the Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
Richard Babb
Arthur Bazan
James Brockway
John Brockway
John Daley
4 By interrogating employees about their union sympa-
thies and activities; by threatening employees with eco-
nomic reprisals, including closing the business and laying
off the least senior employees if the employees supported
the Union; and by telling an employee that employees had
been laid off because of the Union's organizational cam-
paign, the Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(1) of the Act.
5. All truckdrivers and mechanics employed by Respon-
dent at its facilities located at 4600 Sheila Street, city of
Commerce, California, and 5001 Pedley Road, Riverside,
California; excluding all other employees, office clerical
employees, professional employees, guards, and supervi-
sors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act
6. Since August 21, 1973, the above-named labor organi-
zation has been and is now the exclusive representative of
all employees in the aforesaid bargaining unit for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
7. By refusing on or about August 21, 1973, and at all
times thereafter, to bargain collectively with the above-
named labor organization as the exclusive representative of
all the employees of the Respondent in the aforesaid ap-
propriate unit, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
CONCLUSIONS OF LAW
1. M & J Trucking Co., Inc., the Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local Freight Drivers, Local Union No. 208, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By laying off the employees named immediately be-
55 Assuming arguendo that the Union's demand for recognition was inef-
fectual, the Board may appropriately issue a bargaining order to remedy
violations of Section 8(a)(1) and (3) where, as here, the Union in fact repre-
sented a majority of the employees in an appropriate unit Gissel, supra at
587-590, 616-620
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action in order to effec-
tuate the policies of the Act.
For the reasons already discussed, I shall recommend an
order directing that Respondent bargain with the Union
upon the latter's request
Having found that the Respondent discriminatorily laid
off the five employees named earlier in the Decision in
paragraph 3 of the Conclusions of Law, I shall recommend
that the Respondent offer each of them, if it has not al-
ready done so, immediate and full reinstatement to their
former jobs or, if said jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
M & J TRUCKING CO., INC.
and other rights and privileges and make each of them
whole for any loss of earnings suffered by reason of such
discrimination, by payment to each of them a sum of mon-
ey equal to that which normally would have been earned
from the date of the layoff to the date of said offer of
reinstatement , less net earnings during such period, with
backpay computed on a quarterly basis in the manner es-
tablished by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and with interest thereon as prescribed
by the Board in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
As the unfair labor practices committed by Respondent
were of a character which go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and to
cease and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 56
Respondent, M & J Trucking Co., Inc., Commerce, Cali-
fornia, and Riverside, California, its officers, agents, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees about their activities and
membership in Local Freight Drivers, Local Union No.
208, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization.
(b) Threatening employees with economic reprisals, in-
cluding the closing of the business and laying off the least
senior employees if the employees support the above-
named Union or any other labor organization.
(c) Telling employees that employees have been laid off
because of an organizational campaign initiated by the
above-named Union, or any other labor organization.
(d) Discouraging membership in, or activities on behalf
of, the above-named Union, or any other labor organiza-
tion, by laying off employees, or otherwise discriminating
against them in any manner with regard to their hire and
tenure of employment or any term or condition of employ-
ment because of their union activities.
(e) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the above-named Union, as the exclusive
bargaining representative of its employees in the following
appropriate unit:
All truckdrivers and mechanics employed by Re-
spondent at its facilities located at 4600 Sheila Street,
City of Commerce, California, and 5001 Pedley Road,
56 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
611
Riverside, California; excluding all other employees,
office clerical employees , professional employees,
guards, and supervisors as defined in the Act.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer each of the persons named immediately below,
if they have not already been so offered, immediate and
full reinstatement to their former positions or, if such posi-
tions no longer exist , to substantially equivalent ones, with-
out prejudice to seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of earn-
ings they may have suffered as a result of the
discrimination against them , in the manner set forth above
in the section of this Decision entitled "The Remedy."
Richard Babb
Arthur Bazan
James Brockway
John Brockway
John Daley
(b) Upon request, bargain with the above-named labor
organization as the exclusive representative of all the em-
ployees in the aforesaid appropriate bargaining unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amounts of backpay due and the rights
of reinstatement under the terms of this Order.
(d) Post at its places of business copies of the attached
notice marked "Appendix."57 Copies of said notice, on
forms provided by the Regional Director for Region 21,
after being duly signed by Respondent 's representative,
shall be posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that Case 21-RC-13365 be se-
vered and returned to the Regional Director for Region 21,
to vacate and set aside the election of September 17, 1973,
and to dismiss the representation petition in said case.
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 "