Marion Center Supply, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1985

277 N.L.R.B. 262 (N.L.R.B. 1985)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marion Center Supply , Inc. and William S. Ondo
and Teamsters , Chauffeurs , Warehousemen and
Helpers Local Union No. 110 a/w International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 6-
CA-16640, 6-CA-16843, and 6-RC-9391
8 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 17 August 1984 Administrative Law Judge
Walter J. Alprin issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions as modified and to adopt the recom-
mended Order as modified.2
Discharge of Cressley
The judge found dischargee Cressley had a
record of "relatively minor work offenses" which
had been forgiven. The record reveals, however,
that some of Cressley 's offenses were serious, and
he was warned not to continue such behavior.
Cressley was the second employee to sign a union
authorization card , 1 day after Ondo signed his
card. Cressley discussed the advantages of the
Union with numerous employees and told other
employees that he signed a union card.
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board' s established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products , 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
The judge made several factual errors For example , the judge found
employee McCullough confirmed that the Respondent 's owner and presi-
dent, Elliott , discussed the union campaign in July 1983 , in fact, McCul-
lough placed the conversation in July at one point and in August at an-
other point in his testimony . And, contrary to the judge 's finding, Elliott
did not admit speaking to employee Laney about refusing to sign a peti-
tion to revoke union authorization cards Finally , contrary to the judge's
finding , one of the Respondent 's customers did identify discriminatee
Ondo as one of the employees engaging in allegedly dilatory practices
We correct the errors, but because there is sufficient independent evi-
dence to support the dating of the conversation in July and the ultimate
findings that the Respondent solicited revocation of authorization cards
and unlawfully discharged employee Ondo , we find the errors do not
affect the judge 's conclusions Nor do we find it significant that the judge
mischaracterized a list of employees as the Excelsior list
We find it unnecessary to rely on fn 5 of the judge 's decision and the
judge 's discussion of Buffalo Broadcasting Co, 242 NLRB 1105 ( 1979).
2 We modify the recommended Order to provide that the Union is en-
titled to both a bargaining order and a certification of representative in
the event the revised tally of ballots shows that it won the election. See
Gordonsville Industries , 252 NLRB 563 , 604 (1980), and the cases it cites.
The Respondent claimed it fired Cressley when
it received notice that Cressley had been ticketed
for failing to show a truck lease to a Public Utility
Commission (PUC) officer. This situation is not
similar to any of Cressley's prior, unexcused of-
fenses. The Respondent alleged Cressley told El-
liott he did not show the truck lease to the PUC
because he did not feel like it. Credited testimony
reveals Cressley did not have the requested items
and he did not tell Elliott he did not feel like show-
ing them to the PUC. Accordingly, we agree with
the judge that the claimed reason for Cressley's
discharge was pretextual.
Given the finding of the Respondent 's prior
knowledge of the union campaign and Cressley's
participation ,3 and the pretextual reason offered for
his discharge , we agree with the judge that Cress-
ley's discharge violated Section 8(a)(3) and (1) of
the Act.
Bargaining Order
The judge found the Union represented a majori-
ty of the unit employees at one time. We agree.
When the Respondent first received notice of the
Union's demand for recognition 10 August 1983,
there were 19 unit employees working for the Re-
spondent, not counting the 100 -percent company
shareholder's three children who are not employees
under Section 2(3) of the Act. The Union had
signed cards from 10 of the 19 employees . Includ-
ing discriminatory dischargees Ondo and Cressley,
the Union had cards from 12 out of 21 employees.
Therefore, the Union clearly represented a majori-
ty of the unit employees on the demand date.
The judge found that a Gissel4 bargaining order
should be issued . We agree . The Respondent com-
mitted at least four "hallmark" violations-dis-
charging the main union adherent and an active
union supporter , threatening discharge , and threat-
ening plant closure . See NLRB v. Jamaica Towing,
632 F.2d 208, 212-213 (2d Cir. 1980). (The threats
were made by the Respondent 's owner and presi-
dent.) In a small unit of 21 employees, one-fourth
of the unit (5 employees) were directly affected by
the Respondent's hallmark violations . Such highly
coercive unfair labor practices as the repeated vio-
lations of Section 8 (a)(3) were likely to have had a
3 We agree with the judge 's finding that the Respondent had direct
knowledge of discriminatee Ondo 's union activity . We further agree with
the judge that the Respondent 's knowledge of discriminatee Cressley's
union activity may be inferred . In so doing, we rely on the fact that the
Respondent had direct knowledge of the Union 's campaign , that Cress-
ley's discharge occurred almost simultaneously with Ondo ' s discharge,
and that the Respondent 's asserted reason for discharging Cressley was
pretextual . We therefore find it unnecessary to pass on the judge 's addi-
tional reliance on the "small plant doctrine "
4 NLRB v Gissel Packing Co., 395 U S. 575 (1969)
277 NLRB No. 26
MARION CENTER SUPPLY 263
profound impact on all employees. In these circum-
stances, we conclude that in the event the revised
tally of ballots shows that the Union lost the elec-
tion, it is unlikely that the use of traditional reme-
dies would be sufficient to ensure a fair rerun elec-
tion. Accordingly, we agree that a bargaining
order is warranted.5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Marion Center Supply, Inc., Marion
Center, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order.
IT IS FURTHER ORDERED that the challenges to
the ballots of John Zolocsik, Richard Engle,
Gerald McCullough, and William Ondo, having
been overruled, they shall be opened and counted
and a revised tally of ballots be issued and served
on the parties. If the tally shows a majority vote
for the Union, then the Union shall be certified as
representative in the above appropriate unit. If the
revised tally fails to show that the Union has re-
ceived a majority of the valid ballots counted, the
election shall be set aside and the representation
case dismissed.
5 Member Dennis concurs See her separate opinion in Regency Manor
Nursing Home, 275 NLRB No 171 (July 31, 1985)
Barton A. Meyers, Esq., for the General Counsel.
Rodney M Scott, Esq. (Tomb & Tomb), of Indiana, Penn-
sylvania, for the Respondent.
Ernest B. Orsatti, Esq. (Jubelirer, Pass & Intieri), of Pitts-
burgh, Pennsylvania, for the Charging Party/-Petition-
er.
DECISION
STATEMENT OF THE CASE
WALTER J. ALPRIN, Administrative Law Judge. The
issues in this case are whether the employer violated the
rights guaranteed employees by Section 7 of the National
Labor Relations Act (the Act) by threats, surveillance,
and otherwise in violation of Section 8(a)(1) of the Act;
whether the employer terminated employees because of
protected union activities in violation of Section 8(a)(1)
and (3); alternatively whether the employer terminated
an employee in retaliation for filing charges with or testi-
fying pursuant to the Act in violation of Section 8(a)(4)
of the Act; whether the Union represented a majority of
employees in an appropriate unit; and whether the em-
ployer failed and refused to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act,
Charges were filed on August 17 and October 21,
1983,1 complaint issued October 27, and amended com-
plaint issued November 10. Hearing was held before me
at Indiana, Pennsylvania, on March 13-15, 1984, and
briefs were thereafter submitted on behalf of the employ-
er and of the General Counsel.2
On consideration of the entire record, and observing
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
A. Background and Jurisdiction
Marion Center Supply, Inc. (Respondent) engages in
the sale of ready-mix concrete, pre-cast concrete prod-
ucts, and other building supplies at its sole facility at
Marion Center, Pennsylvania, and in hauling coal and re-
lated products. It admits it is, and I find it to be, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 110, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (the Union) has been at all times ma-
terial herein a labor organization within the meaning of
Section 2(5) of the Act.
B. Events Prior to Receipt of Demand to Recognize
1. Knowledge of union campaign
William Ondo, employed by Respondent as a truck-
driver on June 22, began the Union's organizational cam-
paign sometime in July with the distribution of union au-
thorization cards, which were executed by the 13 em-
ployees and on the dates as follows: William Ondo, July
13; Michael Cressley, July 14; James Lightcap, July 18;
Terry Goss, July 18; D. Lynn Baun, July 20; Gerald
McCullough, July 22; Kevin Berringer, July 25; Gary
Reinhart, July 25; Harry Bish, July 26; James Edwards,
July 26; Daniel Ford, July 26; Thomas Lipsie, July 26;
and Blair Hilty, August 2.
Ford, who left the employment of Respondent in No-
vember, testified that some time during the second week
of July, while under a truck greasing it, he heard Glenn
Elliott, Respondent's president and sole stockholder,
come in and ask John Zolocsik, another employee,
whether he had heard the rumors about a union "making
their way" into Respondent. Zolocsik, called by Re-
spondent to testify, was not questioned regarding the in-
cident. Elliott could only testify, "I have no idlea; I don't
recall asking that," which I take as a denial.
Ford also testified that a short time later, since it was
also during the second week of, or late in July, he and
McCullough, who is still employed by Respondent, ap-
proached Elliott to complain that Respondent's wages
were substandard and to ask for an increase in pay, bene-
fits, or both, for all employees. Ford testified that he and
McCullough at that time told Elliott that the union was
All dates are in 1983 unless otherwise indicated.
a Respondent's unopposed motion to correct the transcript is hereby
granted.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working its way in, and that Elliott responded that
"there would be no way that the union would ever come
in at Marion Center Supply."
McCullough confirmed that the meeting with Elliott
took place on July 20 or 21, that they told Elliott of the
union campaign and, since they preferred not to have a
union, requested a raise or , other benefits for all employ-
ees. He also testified that Elliott's response was that "no
way would the union get into Marion Center Supply."
McCullough testified that there was a third meeting
among the three, about a week later, 3 in which Elliott
asked if the employees were really thinking of "going
union" and asked for the identity of those persons who
were "starting" the union , stating that he would "take
care of the problem." McCullough also testified that
during this conversation Elliott stated that he would
never "go union ; that we would have to go on strike and
while we were striking he could hire all new employees
to replace us."
Ford was not questioned and did not testify as to this
conversation . Elliott first testified , as to the alleged con-
versation , that "there may have been , everybody would
like to make money. I'm sure. They may have asked me
for more money ." After then denying that Ford and
McCullough had asked about a union, Elliott testified
that "the only thing I said that I was having a hard time
and I didn't have the business . . . I just said that busi-
ness was slow , the accounts receivable were slow and
that I would take it under consideration and that was it."
Elliott also denied asking who was involved in the Union
and stating that the Union would never come in.
Ford also testified that in the latter part of July, Ondo
and Zolocsik got into an argument , after which Elliott
asked Zolocsik whether Ondo was "the one getting the
Union started or is he pushing the Union in here?" El-
liott denied making such an inquiry.
Goss, who was employed by Respondent until early
November , testified that during the last week of July, as
he was leaving work , Elliott approached him and asked
if he would like some advice. Goss said he would, and
Elliott "said , stay the hell away from those guys that's
starting that bullshit. And I said, What bullshit is that?
He said, the bulls hit about the union ." Goss further tes-
tified that Elliott then told him "that if I wanted a future
there that to stay away from them or else I was fired."
Elliott denied the conversation . Elliott and Goss are in-
volved in a dispute regarding liability for a hospital
charge of $23 which Goss claims arose from a work-re-
lated incident occuring April 27 covered by workmen's
compensation and which Elliott believed to cover other
services . Elliott also testified that there is a dispute be-
tween Goss and himself due to an error Goss made in
mixing a batch of concrete which Goss denies, and re-
garding Goss making an obscene gesture to the wife of
one of his customers.
McCullough also testified that roughly between
August 1 and 6, Elliott told him he had a "pretty good
idea of who started the union and wanted to know if he
drove a brown and orange auto-car dump truck tri-axle,"
3 McCullough was able to place the time because it was shortly after
he had signed his union authorization card on July 22
which described only the vehicle driven by Ondo. Elliott
also denied making this statement.
2. Discriminatory discharges
a. William Ondo
On August 3, Ondo returned to Respondent 's facility
to park his vehicle . He was then told by Elliott that
there was no work available for the vehicle , and that he
should not report the next morning . This was the first
such occurrence since Ondo had been hired on June 22
as a tri-axle dump truck driver hauling coal , sand, and
gravel . The next day , August 4, about 5:30 p .m., Elliott
phoned Ondo at home and told him that "We're going
(to) try another fellow on that truck to see if he can
make better time" and that he should sign up for unem-
ployment benefits . Ondo asked for and was given permis-
sion to come to the facility for his personal gear, which
he did . On Ondo's final paycheck Respondent typed a
restriction to the endorsement , as follows: "I , William
Ondo understand that I am being laid off from Marion
Supply, Inc. as of August 4, 1983." Ondo refused to exe-
cute the endorsement in that form , and Respondent re-
fused to release funds to honor the check for over 2
months, until Ondo had retained counsel who threatened
suit and Ondo, after being advised of the consequences
or lack thereof, had endorsed the check with the state-
ment.
The testimony of Elliott with the entire litany of
grounds for Ondo's termination was summed up in his
counsel's letter to the Board agent on September 23, rel-
ative to the charge herein , as follows:
As previously emphasized in our statement in
letter form of August 30, 1983, the employer,
Marion Center Supply , Inc., had no knowledge
whatsoever of union activity at its establishment
until several days after the discharged individuals,
including William Ondo, had already been dismissed
for cause . Ondo's layoff was precipitated by a pat-
tern of behavior displaying negligence , unwilling-
ness to perform his duties diligently , property
damage and waste, and an antagonistic attitude
which was known to be disruptive of his fellow em-
ployees.
William Ondo began working for the employer
approximately 6 weeks before he was eventually
laid off. About three weeks into his employment, he
smashed the corner of a garage located at the en-
trance to the employer 's premises by turning his
truck around the corner too sharply-an action that
was considered to entail extreme driver incompe-
tence both due to the fact that no one had ever
before hit the garage in such a manner , and the fact
that Ondo had no reason to be making the turn
which caused the accident , as he was supposed to
be going straight past the garage that was struck.
The next incident involving Mr. Ondo was the
discovery of his involvement in a practice of wait-
ing around after his truck was loaded at Mears Coal
Co. until all of the other trucks from Marion Center
Supply had also loaded. He, along with the other
MARION CENTER SUPPLY
drivers involved, were warned about this waste of
the employer's equipment and fuel. Because a large
diesel truck is normally left running constantly
during the day until it is shut down at night, any
waste of time involves, in addition, the unnecessary
use of fuel to keep the engine running.
Another practice of Ondo's relating to his even-
tual layoff was his incessant use of his CB radio in
the truck he was driving. The other drivers of
Marion Center Supply complained about this prob-
lem to the employer. The "Music Man" as Ondo
called himself, would constantly be driving with
one hand holding the microphone of the CB radio.
By driving one-handed on the narrow bumpy roads
that comprise the majority of highway in this part
of the state, and hauling 70,000 lbs. of material in a
large coal truck, Ondo subjected other users of the
highway to danger and subjected the employer to
potential liability for any injury or property damage
that could have resulted.
William Ondo was known by many to be antago-
mtstic, boisterous, and what some call "lazy." He
disrupted those around him, and one of the other
employees, Mr. John Zolocsik, even asked the em-
ployer to fire Ondo at one point. Ondo refused to
do small tasks connected with the maintenance of
his truck, such as aiding with an air hose, handing
tools to other workers, etc. Ondo would do nothing
but drive his truck and even his performance at that
task slid below acceptable standards.
Throughout Ondo's period of employment, he
took longer and longer to perform the same runs
with his truck, and used more fuel as well. The final
event which precipitated his layoff for cause oc-
curred on August 4, 1983, when the employer
found hard evidence that Ondo had been malinger-
ing on the job. Ondo left the employer's premises
after completing his run with the coal truck to Erie,
Pa., on August 3. When Ondo left he was told by
the employer that he need not come in the next
day, August 4, because the employer had no more
orders that required the use of Ondo's truck for the
4th. Later that same evening of August 3, an order
requiring the use of that truck did come in. The em-
ployer tried to call Ondo at his home to tell him to
come in on the 4th, but could not reach him. The
employer does not recall whether, when Ondo was
called at his home that evening, his line was busy,
or whether no one answered the phone at all. In
any event, Ondo was unavailable to drive the truck
on August 4. At this point, the employer called em-
ployee Thomas Lipsie, who had asked for a chance
to drive a coal truck in the past, to make the same
run to Erie, Pa. Lipsie, to the employer 's surprise,
made the same run in the same truck hauling the
same amount of material in over 2 hours less time
using 12 gallons less fuel. The copy of the time
cards for Ondo and Lipsiie for the run in question,
show the difference.
On making the discovery, the employer called
William Ondo and told him that he had better sign
up for unemployment because he was being laid off.
265
Ondo merely stated "alright" [sic] or "okay" and
that was the end of the conversation.
In addition, Elliott testified at the hearing as to incidents
in which he observed Ondo speeding, "smoking the
brakes" by abruptly reducing speed, and driving danger-
ously. Examination of Ondo also sought to establish as
an additional reason for his August 4 discharge the mis-
suse at various times after that date of keys allegedly
given Ondo.
Ondo testified that he had indeed had the accident hit-
ting the garage corner. He admitted that at various times
during his employment he exceeded the speed limit, but
denied the specific instances of speeding, smoking the
brakes, or driving dangerously alleged by Elliott. In
terms of waiting until all trucks were loaded before leav-
ing a loading cite, Ondo testified as to assistance in load-
ing he was required to give other drivers, and the fact
that the vehicles generally ran in convoy. As to taking
additional time to complete a run, in a convoy all vehi-
cles take the same time, and the speeding with which
Ondo was charged would have reduced the time of the
runs. Ondo admitted using the CB radio, which was in-
stalled by Respondent for Respondent's own benefit.
However, Ondo testified that the CBs were used in part
to discuss the Union campagin with other drivers, going
from the generally used channel 19 to channel 33 for
such purpose pursuant to secret prearrangement.4
Zolocsik testified for Respondent that he had asked
Ondo for assistance only once, and received it, that the
only problem Ondo ever created was once failing to
move his vehicle for the convenience of others, that
Ondo never argued with other employees, but that he
thought Ondo was "rather stupid" in hitting the edge of
the garage, and told Elliott he could find a better driver.
He did not testify as to asking Elliott to fire Ondo.
As evidence of Ondo malingering , Respondent pre-
sented the testimony of John Jahoda, an employee of Re-
spondent's coal company customer. Jahoda reported on
excess running time, bunching up of vehicles, loitering,
littering, and other matters. He did not, however, identi-
fy Ondo as individually being involved in any of these
activities.
Finally, Elliott's testimony of the actual status of and
reason for Ondo's termination went further than coun-
sel's letter previously quoted. The reason "was a combi-
nation of three things or several things. I had the com-
plaint from the coal company; they didn't name Ondo by
name and I wasn't picking on him because of that. It was
things that I observed and it was a matter of economics.
I had too many men." The observations dealt with
speeding and unsafe driving, and excessive time, previ-
ously discussed. Again Elliott testified the grounds for
termination were: "But the reason why I laid him off
was that my concrete business . . . they didn't need as
much daily as they had before." Further, Elliott had
been asked by Lipsie for the chance to drive a dump
truck, and "So I kept thinking about, my main concern
4 Ondo testified of an instance of mentioning the union campaign on
channel 19 while Elliott's daughter was near by in a vehicle which had a
CB, but there is no evidence that the conversation was overheard.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Mr. Ondo was, I was afraid of him having a serious
accident." He testified that "the day of the 3rd, our loads
had been cut back a little but, our concrete had dropped
away . . . so I really didn't need Lipsie at all for the
concrete end of it . . . I tried to call Bill Ondo once and
it was either busy or no one answered . . . so I thought,
well I'll give Lipsie a try and he worked out well, even
using up less time than Ondo." Elliott continued testify-
ing as to the reason for Ondo's termination that "the
concrete business never recovered. . . . So, consequent-
ly, we didn't need as many men. So if you don't need,
the newest, at that time Mr. Ondo was the newest man."
Actually, Hilty had been hired 5 weeks after Ondo. Pay-
roll records reveal that Respondent hired two new driv-
ers on August 5, and a third new driver on August 8.
Elliott testified as to Ondo's status that his action of
August 3 "was strictly just a layoff," and "I didn't con-
sider [it] really super permanent. If I'd got the work, he
would've been back." Elliott considered Ondo as still
employed until August 19 when Elliott received notice
of the unfair labor practice charge. In his words, "When
I got the unfair labor practice on the 19th, you know,
that sort of makes your decision for you" and, in earlier
testimony, "I probably thought, well, you don't need
friends like that." After receiving Ondo's charge he as-
sumed Ondo didn't want to be his friend and that since
he received no notice of application for unemployment
benefits that Ondo had obtained other employment.
b. Michael Cressley
Cressley was employed by Respondent as a driver
from May 1, 1981, until August 4, He was the second
employee to sign a union authorization card, doing so on
July 14, and prior to his termination discussed the Union
with three to five other drivers at Respondent's facility,
and once or twice on the CB. After work on August 4
he was terminated by Elliott, who told him that a report
from the Pennsylvania Public Utility Commission was
the reason.
In his letter to the State Office of Employment Securi-
ty, dated August II, Elliott stated the following grounds
of "willful misconduct" leading to discharge:
Mr. Michael G. Cressley had been employed
with our company from May 1, 1981 to August 4,
1983. In that time period these are some of the
things that lead [sic] to his willful misconduct:
Summer of 1981
Mr. Cressley was to report to work at 7:00 AM
on Saturday to drive a concrete mixer truck in
which we had promised the customer concrete to
be at their home at 8:00 AM. Mr. Cressley never
showed up, leaving me in a real mess. Monday
morning Mr. Cressley came to work and told me
that he had to take his baby to the Indiana Hospital.
Later that day I called the Indiana Hospital, there
was no child there Saturday under the name Cress-
ley. Mr. Cressley was warned at this time.
Fall of 1982
On Thanksgiving eve, Mr. Cressley was instruct-
ed to fuel up his truck and put it away. He did that
but ran into a 16' wide door smashing the frame.
Mr. Cressley left for the day not telling me about
the door. One of the other employees came to me
and said do you know Mike smashed the door? I re-
plied NO! On the door frame, I had to work many
hours that evening trying to get it closed and
locked. On Thanksgiving evening I called Mr.
Cressley and asked him why he did not tell me, his
reply was "you don't seem to get as mad several
days later than if I would have told you that day."
Mr. Cressley was warned at this time
Winter of 1983 [sic]
Mr. Cressley was driving a dump truck, he was
instructed how to operate the truck such as mainte-
nance, dumping loads, driving in bad weather con-
ditions, etc. . . . Mr Cressley would not follow in-
structions on how to dump , therefore he twisted the
tailgate twice . We had approximately 4 hours of
welding, straightening , etc. . . . to do each time.
Another employee drove this same truck approxi-
mately 246 ,000 miles and never hurt the tailgate.
Mr. Cressley was warned at this time.
Spring of 1983
Mr. Cressley was still driving the same dump
truck, he would not tighten the bolts on the wheel,
therefore he busted the front lug. Mr. Cressley was
warned to check these items daily. A few weeks
later one of the other dump truck drivers made Mr.
Cressley tighten the bolts at the limestone quarry
because the wheel was ready to fall off. Mr. Cress-
ley was warned again about his poor maintenance.
Summer of 1983
Mr. Cressley was pulled over by a state police of-
ficer for a common check of the truck. He asked
Mr. Cressley to see the insurance card, Mr. Cressley
said he did not have one, which was and is incor-
rect because I issue a new card to each truck once a
year. Mr. Cressley was warned about this, he did
not seem concerned about the matter.
August 3, 1983
In the mail today I received the attached road
check from the Pennsylvania Public Utility Com-
mission telling me Mr. Cressley was stopped and
did not show them his lease and sign for the truck,
which was and is on board. As you will find in the
enclosed letter, upon questioning Mr. Cressley why
these items were not shown to the PUC people, he
indicated that he did not feel like showing them to
the PUC people. At this time Mr. Cressley was
fired from our company for willful misconduct.
After further examination of the truck we found
that it looked like pigs had lived in it, we also found
several other maintainance [sic] items that should
MARION CENTER SUPPLY
have been reported to our maintainance [sic] super-
visor. Mr. Cressley was a very moody employee, he
never was concerned about his job. If you need
more reports of this nature, I have a lot more items
similar to this.
By Elliott's direct testimony, and by cross-examination of
Cressly, additional accidents or incidents of alleged poor
driving were added for the period starting in 1983.
Cressley's testimony regarding the incidents in the
letter were as follows: That in 1981 he had neglected to
advise Elliott when he took his son to the hospital,
having gone to the emergency room and not being re-
quired to admit the child to the hospital and that he was
warned not to miss too many Saturdays or he would lose
his job; that in 1982 he did run into the door frame and
failed to report it because he was afraid of being fired,
and that he was instructed to and did repair it the next
day; that in 1983 he did, through inexperience, damage
the dumping mechanism of a dump truck and was
warned that if it continued he would be reassigned to a
different type of vehicle; that he checked wheel bolts
regularly but that they would work loose, which was the
reason for regularly checking them; that, in 1983, he did
not have a current insurance card available because Re-
spondent had not issued one to him; that on August 3, as
the last vehicle in a convoy of five, he was stopped and
when explaining that he was allegedly operating under
lease was asked for a copy of the lease, required to be
carried, and as to why he did not display the required
identifying door placards. Cressley testified that he
searched the vehicle for a copy of his lease papers but
was unable to find them, and that the placards had been
previously given to another driver at Elliott's direction.
He admitted that he did not mention the incident to El-
liott at the time, but denied that he failed to display the
items to the PUC because he "did not feel like showing
them," or making any such statements to Elliott.
During this period Elliott had problems with many
drivers not appearing for work on Saturdays, and he had
instituted the practice of delaying payday from Friday to
Saturday for any driver not coming in on Saturday three
times. Cressley had failed to come in only twice, though
a number of drivers failed to come in three times and
had had their paydays changed.
Cressley was denied unemployment benefits and ap-
pealed the ruling, stating that his actions had not been
willful. He did not allege that his union involvement was
the cause of his discharge, and he did not appear at the
hearing of his appeal.
c. Blair Hilly
Hilty was employed by Respondent as a driver from
July 29 to August 4. He signed a union authorization
card on August 2.
Hilty testified that on the evening of August 4, when
he finished work, he was approached by Elliott who told
him that the coal company at the loading point had com-
plained that drivers "were screwing around and holding
up traffic; we were loading and just setting . . . and he
told me I was fired. And I said, you didn't fire me, I
quit."
267
Elliott testified that no such conversation took place,
and that on August 5 Hilty simply did not report for
work. Elliott's daughter, Respondent's dispatcher, testi-
fied that after Hilty clocked out on August 4 she gave
him his instructions to report for work the next morning,
that they chatted and he mentioned nothing about any
conversation with Elliott, being fired, or quitting.
C. Events After Receipt ofDemand to Recognize the
Union
By letter dated August 3, received by Elliott August
10, the Union advised Respondent it claimed a majority
of Respondent's employees as members, and "requesting
recognition as the sole and exclusive bargaining agent for
the people." The Union also filed a certification petition
with the Board, a copy of which was received by Re-
spondent on August 8.
1. Soliciting revocation of union authorization cards
Ford and McCullough testified that in mid-to-late
August, Elliott told them that for employees "that really
didn't want this union in here the best way to get this
out of here was to sign a petition saying that we the un-
dersigned employees . . . do not want this union to rep-
resent us." Ford testified that the suggestion was coupled
with veiled threats, later discussed. Ford and McCul-
lough testified that they discussed this between them-
selves, and that McCullough then wrote out a petition as
dictated by Elliott. It was then arranged that as employ-
ees came into the shop, Ford and McCullough would get
their signatures. Those employees not coming through
the shop were sent by Elliott, who told them that Ford
and McCullough wanted to see them. To the roughly six
employees who asked what would happen if they did not
sign, McCullough responded "I have no idea, but that I
was signing it, I needed to keep my job." McCullough
added that Elliott came over several times to see who
had signed the petition and as to driver Laney, when
told he refused to sign, that Elliott said he would take
care of it and the next day Laney signed. Elliott's coun-
sel gave McCullough the names and addresses of parties
to whom copies were to be sent-the Board, the Union,
and Elliott.
McCullough left the petition in an office safe over-
night, and the next day found it had disappeared. He tes-
tified that when he reported this to Elliott he was told to
quickly make up another one, get it signed the same way
and "Nip this thing in the bud." McCullough's second
petition was as follows:
We the undersigned employe(e)s of Marion Center
Supply, Inc. Do not want the Teamsters' Local 110
Union in representing us in any way, because we
feel we have been lied to, mislead, 5 misinformed to
believe things that are not so. (We want the cards
back)
This is the second original copy of this letter. The
first one was stolen by someone for the Union. The
5 Note the same past tense spelling in Elliott's letter re Cresssley, first
paragraph
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first letter we had 100% of the employees (sign),
this letter we don 't But its enough!
C.C. Better Relations Board
C.C. Teamsters Local 110 & Marion Center Supply
(Signatures)
Vernon Laney J. W. Lattimer
Harry Bish James Lightcap
Gary Reinhart Jerry McCullough
Gary Nicholson Donald Troup
Terry M. Goss R. E. Miller
Daniel Ford Kevin Berringer
-----s Bill Elliott
Richard Ingle Bruno Busano, Jr.
Thomas Lipsie was asked to sign but responded that he
was for the Union and would not. McCullough testified
that Elliott was within hearing distance at the time.
Lipsie was directed by Elliott to clock out for the bal-
ance of the day.
The portion of the petition stating "We want the cards
back" was inserted at Elliott's direction only after the
signatures had been obtained. McCullough again ob-
tained addresses from Respondent 's counsel, and the peti-
tion was given to Elliott's daughter , the company dis-
patcher, for stamping and mailing on that day, August
18.
Lipsie testified confirming that he had been sent to see
Ford by Elliott who told him that Ford had something
for him to sign, that when he refused to sign Elliott was
within hearing distance , and that after refusing , Elliott
told him to punch out and go home , though the usual
practice would have been for him to take another load.
Elliott's testimony regarding the petition was that
McCullough had come to the office and was very upset
about how the Union had misled him and suggested that
he, McCullough , "write a letter." Elliott testified that
McCullough "insinuated, what should he do, what
should they do, and it just sort of came, it was a sugges-
tion, I think, really from both of us, maybe, if they
wanted to, that they could notify the people, the Union
people, I guess. But I felt that that was strictly their own
doing , McCullough 's own doing. . . . We just sort of,
possibly mutual , just to let them know how they, the
men, felt . This was something that was sort of throwed
in the air by both of us, but they could do what they
wanted to do."
Other than repeating his frequently used statement that
the three quickest ways of going out of business were
women , booze, and the Union, and that as far as his
knowledge went Teamsters only involved truck driving
so that unionized employees would not be able to fill in
on other jobs, he said nothing , neither agreeing nor dis-
agreeing with the idea of writing any letter, much less
dictating it. Elliott recalled McCullough telling him that
Laney would not sign the letter and speaking to Laney
about it, but does not recall hearing Lipsey refuse to
sign.
As to the petition in general , Elliott denied any knowl-
edge of what Ford and McCullough were doing, that he
6 Signature of James Lightcap stricken-appears in second column
"was instructed by Jerry McCullough , when the employ-
ees punched out that they were supposed to come and
see him in the garage . That's all I did, when they would
punch out I said , Jerry said he'd like to see you over in
the garage."
2. Threats , interrogations , and surveillances
In addition to the allegations of unlawful interroga-
tions of Zolocsik, Ford , and McCullough prior to notice
of representation , and a threat to fire Goss if he became
involved with the Union , the General Counsel alleges a
number of unfair labor practices thereafter.
As previously noted , driver Ford testified Elliott said
that if the Union was voted in he would close down and
then reopen with new employees , and that if the employ-
ees were represented by Teamsters they could only be
used as drivers and would not be used in nondriving time
to work as mechanics or laborers in the casting depart-
ment. He also testified Elliott said that he would not go
union, would close the business if it went union, would
refuse to bargain , would force employees to strike and
then replace them, and would reduce pay to minimum
wages.
McCullough also testified Elliott said that he would
force a strike and replace the employees , asked for the
names of union supporters , asked whether he had attend
ed specific union meetings and who was there and "how
things were going ," stated that Teamsters would only
drive and he would not let them do other work, that he
would reduce pay to minimum wages, and that he would
not negotiate if Respondent were unionized.
McCullough also testified that some time after Ondo
was terminated he received a message that Ondo had
called him at home and asked to be called back . He testi-
fied that he mentioned this to Elliott , who gave him a
tape recorder , asking him to use it to record "anything
incriminating about Mr. Elliott, the Company, the Union
or any other employee there." McCullough testified he
took the tape recorder , but did not return Ondo's call. In
another incident , James Edwards testified that on March
9, the Thursday prior to the opening of the hearing, he
had a conversation with Elliott in the office , that Elliott
"had a little piece of paper laying on the counter and it
had (Ondo's, Cressley's, and Hilty's) names. And the
paper said that the National Labor Relations Board was
trying to get them their jobs back into the yard. And he
told me if they came back into the yard-I mean, he just
said-or asked me if I know what they are going to be
driving, and he said, the same thing they were driving
when they left, a dump truck. I took one of their jobs."
Edwards testified that Elliott stated he "was not telling
me what to do or what not to do. He just showed me
the paper." Edwards also testified that Elliott had asked
whether they had ever had a conversation regarding the
Union, and Edwards responded that there was "just
some small thing" which he could not even remember,
and that Elliott responded that "he didn't want to hear
that again, hear about it."
Elliott's testimony regarding all the above instances
consisted of direct denials, or admissions with explana-
tions. He specifically denied ever asking the identity of
MARION CENTER SUPPLY
those joining or belonging to the Union, ever stating that
the Union would never "come in," ever stating that Re-
spondent would shut down , or ever stating that he
would refuse to bargain with the Union. Elliott also
denied ever stating that instead of bargaining he would
only pay minimum wages, testifying that what he had
said was, as in a prepared script, that bargained wages
could be anything from minimum wages up. He denied
ever stating that he would force a strike or would re-
place strikers , testifying that he only read prepared texts
regarding those points. He denied threatening that if the
Union came in he would restrict employees to driving
and not continue the practice of permitting them to work
as mechanics and production employees when not driv-
ing, but admitted telling employees that it was his under-
standing Teamsters would only "drive a truck but we
have many other positions other than driving a truck and
we would have to have separate people for all these dif-
ferent positions."
Regarding the tape recorder incident, Elliott denied
McCullough's version , testifying that in a climate of
threats by the Union and fear on the part of employees,
McCullough asked for the recorder because his wife was
receiving threatening calls. As to Edward's testimony of
the conversation 4 days before the hearing, Elliott testi-
fied that "[w]hat happened , I wrote on a piece of paper
that Mr. Ondo, Mr. Hilty, and Mr. Cressley wanted to
come back and work for Marion Center Supply; this was
what the Labor Board was trying to come across with.
He (Edwards) read it and he said, would they be driving
trucks and I said , I shrugged my shoulders and that's, I
never said a word because I don 't know and I don't
think anybody knows." Elliott's daughter , who works as
dispatcher, was present . She confirmed Elliott's testimo-
ny that Edwards asked how reinstatement would effect
him [sic] and that Elliott merely shrugged his shoulders
in resposne . She did not know what the "piece of paper"
stated, where it came from or where it went, and was
not aware that Elliott himself had prepared it.
D. Discussion of Unfair Labor Practices
1. Credibility
Virtually all the ultimate findings regarding unfair
labor practices revolve about the credibility findings on
the testimonial conflicts between Elliott, on the one
hand, and, on the other , Ford, McCullough, Goss, Cress-
ley, Hilty, and others. For the reasons following and
except where other circumstances require different find-
ings, I do not accept Elliott's testimony.
Elliott testified that Ondo's termination was based in
part on the economic grounds of loss of business and in
part on Ondo 's being the most recent employee and
hence the first to go in any reduction . The facts show
that 2 days after Ondo was terminated 2 other men were
hired, and a third was hired the next workday . Elliott's
excuse of lack of work was therefore not truthful. Sec-
ondly, according to Elliott's own testimony, Hilty gave
no indication when he clocked out on August 4 that he
would not report for work the next morning. Since Hilty
had been employed by Respondent for less time than
Ondo, Elliott's testimony that Ondo was laid off on
269
August 3 as most junior driver also is not truthful. Third-
ly, Elliott testified that the action as to Ondo on August
3 was a layoff and not a termination , and that Ondo
would have been recalled had there been an opening.
Since others were employed on August 5 and 8, before
Elliott received Ondo's charge to the Board, with no
recall of Ondo, it is obvious that Elliott's testimony on
this point also is not truthful . Elliot's insistence that in
order to cash his last paycheck Ondo sign an endorse-
ment to the effect that he had been laid off rather than
discharged is indicative of his furtive attempts to miscast
his action.
Further, weighing testamentary contradiction between
Elliott and McCullough, I find McCullough is more be-
lievable. In addition to his straightforward demeanor, I
have considered that McCullough remained in Respond-
ent's employ , and his testimony may place his job in
jeopardy. Clearly contrary to self-interest, McCullough's
testimony is highly credible . The same is true as to Ed-
ward's testimony , also contradictory to that of Elliott.
2. Prior knowledge of union campaign and
participation by discriminatees
Elliott denied any knowledge of the union campaign
prior to August 8, after the terminations of the three
drivers. McCullough, however, whose testimony I have
found credible, told Elliott about the Union campaign on
July 20 or 21. Ford , who is no longer employed by Re-
spondent and whose testimony is thereby not contrary to
self-interest, nevertheless testified credibly and forth-
rightly, confirming McCullough 's statement in this
regard . I also credit Ford's testimony that he had earlier
overheard Elliott question Zolocsik about rumors of a
union campaign , and later still during July, overheard
Elliott question Zolocsik about Ondo 's participation. Zo-
locsik testified , and denied neither of these two incidents.
Goss is also no longer employed by Respondent , and has
one or more disputes with Respondent , but in view of
my crediting other testimony regarding Elliott's knowl-
edge of the union campaign I also find credible his testi-
mony that Elliott warned him in July against involve-
ment in the campaign. In sum, I find that, through El-
liott, Respondent had direct knowledge of the union
campaign prior to August 3.
In addition , the General Counsel argues that pursuant
to the Board's "small -plant doctrine ," direct proof of
knowledge is not required where it may be inferred from
the record as a whole. In the seminal case of Wiese Plow
& Welding Co., 123 NLRB 616, 618 (19:59), the Board
ruled that examination of the record as a whole support-
ed, on circumstantial evidence , knowledge both of the
union campaign and that the discharged employees had
been active participants . It cited as factors that (1) there
was a small number of employees , (2) the discrirninatee
had spoken to other employees in favor of the union, (3)
the discriminatees ' prior union membership was known
to the employer, (4) the discharge took place shortly
after the time knowledge was inferred, (5) the employees
acting on behalf of the union were discharged simulta-
neously, and (6) the former practice of giving warning
prior to discharge was not followed. In succeeding cases
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
additional criteria were cited , such as giving pretextual
reasons for discharge , Marsden Electric Co., 226 NLRB
1097, 1099 (1976), and Florida Cities Water Co., 247
NLRB 755, 756 ( 1980), and employer union animus,
Alumbaugh Coal Corp., 247 NLRB 895, 900-901 (1980),
Corn Bros., Inc., 262 NLRB 320, 325 (1982). I agree with
the General Counsel that, given (1) the small size of the
work force, (2) that discrimmatees Ondo and Cressley
had spoken in favor of the Union , in person and by CB,
between themselves and with other employees , (3) the
discharges took place shortly after knowledge could be
inferred , (4) the employees were discharged almost si-
multaneously , (5) no warnings were given to Ondo, (6)
the grounds for discharge were pretextual , (7) the em-
ployer exhibited union animus, (8) the son of Respond-
ent's manager worked with the other employees, and (9)
the daughter of Respondent 's manager was the dispatch-
er, in a position to overhear CB communications be-
tween drivers , there is an inference from the record that
Respondent was aware of the union campaign before the
discharges , and at least aware of Ondo's and Cressley's
participation.7
Respondent points out that the employees were secre-
tive and circumspect in pursuing the organizational
effort. However, the Board has recognized that employ-
ees may attempt to conceal their plans from their em-
ployer, but that such fact does not eliminate the validity
of the small -plant doctrine . Bros. Three Cabinets, 248
NLRB 828, 841 ( 1980).
3. Discriminatory discharges
As previously stated, it is found that Respondent's dis-
charge of Ondo was made with both actual and inferred
knowledge of the union campaign and of Ondo 's partici-
pation. The grounds offered by Respondent have been
found to be pretextual , and Ondo's discharge was in vio-
lation of Section 8(a)(1) and (3) of the Act."
As also previously stated , it is found that Respondent's
discharge of Cressley was made with the actual and in-
ferred knowledge of the union campaign , and with the
inferred knowledge of his participation . In view of the
prior findings that Elliott 's contested testimony standing
by itself should not be credited, I do not find that Cress-
ley willfully withheld documents from the Pennsylvania
authorities, or that he told Elliott he had done so. I find,
rather, and employee with a record of relatively minor
work offenses , each of which had been forgiven, who
was pretextually discharged on a false claim of willful
misconduct. I therefore find Cressley 's discharge also to
have been in violation of Section 8(a)(1) and (3) of the
Act.
7 I have previously also found direct evidence of Respondent 's knowl-
edge of the union campaign and of Ondo 's participation
8 In view of the finding it is not necessary to consider the General
Counsel 's alternative theory that Ondo was discharged unlawfully and in
violation of Sec 8(a)(4) of the Act because he filed a charge with the
Board . However, if it were to be found that Ondo was not in fact dis-
charged on August 3 because of participation in the union campaign, then
I would find that Respondent determined about August 19 that it would
not recall Ondo because of the charge he filed with this Board , in viola-
tion of Sec . 8(a)(4) of the Act. The recommended Order and remedy in
that case would be substantially the same as herein.
The same findings of knowledge and participation are
made in respect to Hilty. However, Respondent's stated
reason for discharge, failure to report for work, is sup-
ported not only by Elliott's testimony, but by the testi-
mony of his daughter, who testified credibly that she had
instructed Hilty to report for work at 4 a.m. the next day
as he clocked out, after his alleged confrontation with
Elliott, and that he made no mention of the confronta-
tion, of being discharged, or of quitting. I do not credit
Hilty's testimony, and find that he was not discriminator-
ily or unlawfully discharged by Respondent.
4. Other unfair labor practices
In determining credibility issues above , I have already
found that Respondent interrogated Zolocsik, Ford, and
McCullough regarding the identity of persons active in
the union campaign. In view of my general credibility
findings as to Elliott's contested and otherwise unsup-
ported testimony , I further find that Respondent solicited
McCullough and Ford, and through them both directly
and indirectly the other driver-employees , to repudiate
the Union and revoke authorization cards; that Respond-
ent threatened to discharge Goss, an employee , for pro-
tected union activity ; that Respondent threatened Ford
and McCullough to force a strike, to refuse to bargain
meaningfully, to reduce wages, and to close the facility
because of protected union organizing activity ; and that
Respondent interrogated Edwards regarding testimony
he might give in this proceeding and impliedly threat-
ened to discharge him for giving adverse testimony.
Each of these actions constitute violations of Section
8(a)(1) of the Act.
E. Refusal To Bargain and Election
1. Facts
The first written notification of the union campaign re-
ceived by Respondent was the Union 's petition for certi-
fication , docket number 6-RC-9391, filed with the Board
on August 5, received by Respondent August 8. That pe-
tition defines the bargaining unit to be "all truckdrivers,
mechanics , laborers" and excludes "all office clerical em-
ployees and guards, professional employees and supervi-
sors as defined in the Act." The petition reports that it
had made a request of the employer for recognition as
bargaining agent on August 3.
Though sent by certified mail August 3, the Union's
letter demanding recognition was not received by Re-
spondent until August 10. It stated that as of August 3
the Union had enrolled as members "the majority of
your employees at your establishment in Marion Center,
Pennsylvania," and requested recognition as "bargaining
agent for the people.','
On August 23, Respondent and the Union executed a
Stipulation for Certification Upon Consent Election. The
agreed upon description of the appropriate collective-
bargaining unit was:
All full-time and regular part-time production and
maintenance employees including all driver-opera-
tors, batch plant operators , yard workers, truck dis-
MARION CENTER SUPPLY
patcher and parts runner employed by the Employ-
er at its Marion Center, Pennsylvania, facility; ex-
cluding all office clerical employees, the sales and
office manager, professional employees and guards
and supervisors as defined in the Act.
This was the same description as had been involved with
this Union and this Respondent in an unsuccessful elec-
tion in June 1978, except that the positions of truck dis-
patcher and parts runner were not specifically included
and the position of sales and office manager was specifi-
cally excluded.
The "Excelsior list" of all employees was as follows:
Name Job Title Hire End
Donald L. Baun Truckdriver 4/9/82 --
Roger Kevin
Berringer
Truckdriver 3/15/83 --
Harry ]Bash Truckdriver 4/14/80
Bruno J. Busani Jr. Truckdriver 8/5/83
Michael Cressley Truckdriver 5/1/81 8/4/83
James L. Edwards Truckdriver 5/11/75
William G. Elliott Welder-Yardman 1978
Richard R. Engle Fork Truck Oper. 2/3/75
Daniel E. Ford Truckdriver 3/17/83
Terry M. Goss Truckdriver 3/11/83
Deborah Griffith Parts Runner 1978
Blair H Hilty Truckdriver 7/29/83 8/4/83
Vernon B. Laney Truckdriver 5/6/77
James W. Lottimer II Truckdri ver 7/22/71
James V. Lightcap Truckdriver 6/21/83
Thomas G. Lipsie Truckdriver 5/23/83
Gerald M Truckdriver/Concrete 5/14/82.
McCullough Tech.
Richard L Mertz Truckdnver 8/27/79
Robert E. Miller Truckdriver 8/8/83
Gary L. Nicholson Truckdriver 5/5/83
William S. Ondo Truckdriver 6/22/83 8/3/83
Gary W Reinhart Truckdriver 6/18/83
Daniel E. Troup Truckdriver 8/5/83
Penny L. Wallace Truck Dispatcher 7/9/77
John M. Zolocsik Mechanic 5/19/77
271
to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or
to adjust grievances, or to effectively recommend any of
those actions.
The ballot of William Elliott (William) was challenged
by the Union on the basis that he is a full-time student
and does not share a community of interest with mem-
bers of the unit. William is the son of Glenn Elliott,
owner and manager of Respondent. At the time of the
hearing William was a senior at a vocational-technical
high school, expecting to work for Respondent full time
upon graduation. He has worked for Respondent for 5
years, and his duties are described by his father as "If it's
dirty, he does it." During the summer he works 40 to 60
hours per week, and during the school year 15 evening
and weekend hours per week. He is paid an hourly
wage.
The ballot of Deborah Griffith was challenged by the
Union on the basis that she is a casual employee, em-
ployed full time elsewhere. Griffith is Elliott's married
daughter, and has worked for Respondent for over 4
years as a "parts runner," traveling wherever necessary
to get parts required to keep trucks and equipment oper-
ating.
Gerald McCullough's ballot was challenged by Re-
spondent on the basis that he was a concrete technician
and not within the bargaining unit. In mid-July McCul-
lough, who had been employed as a driver, was asked by
Elliott if he would like to work in the office, and would
like also to do concrete and technician work. He spent
about 4-1/2 hours per week working as a concrete tech-
nician in the office, doing so between 12:30 and 5 p.m.
one day a week. The balance of his time McCullough
cleaned the office, drove, worked as a mechanic or in
the pre-cast division, shoveled sand, and loaded vehicles.
His pay did not change.
The Board agent challenged Ondo's ballot in accord-
ance with established Board procedures on the basis that
he was not employed at the time and not on the eligibil-
ity list.
2. Discussion
The election was held on October 14. Of the "approxi-
mate number of Eligible voters," all 22 cast ballots.
Eight unchallenged votes were cast for, and eight against
the Union, and six ballots were challenged.
The ballots of Zolocsik and Engle were challenged by
the Union on the basis that they are supervisors within
the meaning of the Act. Zolocsik is a nondriving me-
chanic, who is generally in charge of the area where
work is performed by himself and by drivers who do not
then have driving assignments or who are servicing the
vehicle they regularly operate. Engle, who can under-
stand others and make himself understood though a non-
speaking and nonhearing individual, operates a highlift
and a forklift vehicle, and is generally in charge of the
area where pre-cast concrete forms are produced, where
other employees may work when not on driving assign-
ments. Engle and Zolocsik, both hourly wage employees,
direct other employees to the extent of directing what
routine work has to be done. Neither has the authority
a. Contested ballots'
After a review of the above-cited facts it requires no
further consideration to find that neither Zolocsik nor
Engle was a supervisor within the meaning of the Act.
The union challenge of their ballots should be set aside.
As to McCullough's position there is no doubt that for 4-
1/2 out of 5 days he works as a driver, mechanic, batch
plant operator, and yard worker, whose function and in-
terest in working conditions remains within the commu-
nity of the unit. The challenge of Respondent as to his
ballot should be set aside.
William Elliott and Deborah Griffith are son and
daughter of Glenn Elliott, the president and sole stock-
holder of Respondent commercial corporation. As indi-
viduals "employed by his parent" neither of them enjoys
9 In view of the later recommendation of a bargaining order , these dis-
cussions will apply only if the matter requires further consideration
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the status of "employee." National Labor Relations Act,
Section 2(3). While this rule does not apply for employ-
ment by the founder of a nonprofit corporation, Tops
Club, Inc., 238 NLRB 928 (1978), or to the son-in-law of
a commercial corporation's president and majority stock-
holder, NLRB v. Hubbard Co., 702 F.2d 634 (6th Cir.
1983), the issues there are whether the individual en-
joyed a special status differing from other employees in
the unit. There is no question but that William Elliott
and Griffith, as Glenn Elliott's direct offspring, have no
status as employees for purposes of the Act. The chal-
lenges as to their ballot must therefore be sustained,
though on grounds other than as stated.
Ondo's ballot was challenged because he was no
longer employed by Respondent. As found herein, Ondo
was discriminatorily discharged, and is therefore eligible
to vote. Tampa Sand & Material Co., 137 NLRB 1549
(1962). The challenge as to his ballot should be set aside.
b. Refusal to bargain
Respondent correctly argues that it was under no obli-
gation until the Union made a clear and unambiguous
demand for recognition in a bargaining unit appropriate
for collective bargaining. Its argument that such a
demand was not made, however, is not valid.
The Union's demand letter referred to the extremely
general description of a majority of Respondent's em-
ployees, and to "these people," which is not a proper de-
scription of any appropriate bargaining unit. Before re-
ceiving this, however, Respondent received a copy of
the Union's petition to the Board, more fully describing
the appropriate unit as being all truckdrivers, mechanics,
and laborers, excluding all office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
Respondent's argument is grounded in the Seventh
Circuit's holding that not only is an employer under no
duty to acceed to a request to bargain where the demand
is ambiguous, equivocal, or otherwise vague, but also
that the employer is under no obligation to clarify or re-
solve such infirm demand. National Can Corp. v. NLRB,
374 F.2d 796 (7th Cir. 1967). Though not stated in the
decision, this directly reverses the rule set forth just the
prior year, in the same circuit, that "the proper course
for the employer in those circumstances is to refuse to
bargain with respect to those employees whose unit
status is disputed, not to wholly refuse to bargain."
NLRB v. Richman Bros. Co., 387 F.2d 809, 813 (7th Cir.
1967).
In any event, the Third Circuit, which incidentally is
the circuit in which the matter at hand is sited, later dis-
posed of the issue by ruling that "the contemporaneous
filing of a representation petition was relevant to the im-
portant issue of whether the letter constituted a legally
sufficient request for bargaining in an appropriate unit,
such as could be the basis of a refusal to bargain."
NLRB v. M. Koppel Co., 412 F.2d 681, 684 (3d Cir.
1969). The Board itself adopted such stance, holding in
Pilot Freight Carriers, 223 NLRB 286, 304 (1976), that
"[t]he demand letter . . . stated that `an overwhelming
majority of your employees . . .' have chosen the Union
as their bargaining agent. It appears to me that even
though the unit was somewhat ambiguous in the initial
demand letter-this request was sufficient to support a
duty to bargain. It is well settled that a union's request
for recognition is sufficient to raise a duty to bargain on
the part of an employer if the employer is apprised in
general terms of the proposed unit description. The re-
quest need not be grammatically perfect and need not
define the unit in minute detail . . . . It is also noted that
further particulars as to the unit make-up were supplied
by the Union."
It is therefore clear that Respondent cannot rely on
the Union's letter, with its imperfect statement of bar-
gaining unit, but must consider the petition, of which it
had notice when the letter was received and which more
clearly defined the unit. In addition, Respondent was
aware, from the election held 4 years previously involv-
ing the same Local and Union, of the precise proposed
scope of the unit. Prior dealings have been held to put an
employer on notice, Buffalo Broadcasting Co., 242 NLRB
1105, 1106 fn. 2 (1979), especially where bargaining took
place.
Neither the petition nor the prior dealings, however,
included within the unit the positions of truck dispatcher
or parts runner. I therefore find that Respondent failed
to bargain with the Union as sole representative of a unit
composed of. All full-time and regular part-time produc-
tion and maintenance employees including all driver-op-
erators, batch plant operators, and yard workers em-
ployed by Marion Center Supply, Inc. at its Marion
Center, Pennsylvania, facility; excluding all office cleri-
cal employees, professional employees and guards and
supervisors as defined in the Act. I further fmd such fail-
ure to be in violation of Section 8(a)(5) and (1) of the
Act.
F. Bargaining Order
The General Counsel contends that a Gissel bargaining
order, NLRB Y. Gissel Packing Co., 395 U.S. 575 (1969),
is the appropriate remedy in this case since the Union
had achieved a majority based on authorization cards,
and, in addition, because Respondent "has engaged in a
clear course of conduct calculated to undermine and de-
stroy support for the Union among its employees." The
General Counsel thus seeks a bargaining order based on
both the so-called first-category of Gissel, because of
egregious , outrageous , or pervasive unfair labor prac-
tices, and because of the second Gissel category, where a
majority existed.
Just prior to submission of briefs herein the Board
issued its decision in Gourmet Foods, 270 NLRB 578
(1984), in which it ruled that no bargaining order should
issue unless it is determined that the Union represented a
majority of the bargaining unit at some time, and we
must therefore first examine the majority issue.
The "Excelsior" list of employees from July 1 to Octo-
ber 31 (G.C. Exh. 17) totals 25 employees. Of these, 3
(William Elliott, Griffith, and Wallace) are children of
Respondent's sole stockholder and hence are not employ-
ees within the meaning of the Act, so that there are a
total of 22 employees. Of these, 3 (Cressley, Hilty, and
Ondo) were discharged and replaced by new employees
MARION CENTER SUPPLY 273
(Busani, Troup, and Miller) by August 8, when the peti-
tion was received, so that the number of employees on
that date should have been no more than 19.
Since there were 13 signed union-authorization cards
priox to August 10, none of which were voluntarily or
effectively withdrawn either before or after that date, the
Union had a clear majority at all times and under all cir-
cumstances-13 of 25 on the'list, 13 of 22 after exclusion
of nonemployees , and 13 of 19 after discounting replaced
employees. The Union therefore fully meets the majority
test.
Assuming that Gourmet Foods, supra, limits Gissel to
situations where both a majority and egregious antiunion
acts need be shown, we next consider the nature, extent,
and effect of the violations of Section 8(a)(1), (3), and (5)
above discussed.
Respondent commenced a course of surveillance and
attempted intimidation when it first learned of the union
campaign in July , even before the petition here was filed.
It discriminatorily discharged the leading union propo-
nents, with such a chilling effect on employes that it was
able to coerce the preparation and execution of a petition
by all or virtually all of the remaining employees dis-
claiming union representation . Through the period to the
election Respondent continued its campaign of threats,
coercion, and attempted intimidation.
In this case, the violations which occurred beginning
with Respondent's knowledge of the union activity and
continued on through the time of the election in a rela-
tively small unit constitute , I conclude , conduct which
undeniably dissipated the Union 's majority status and im-
pacted substantially on the election process. Indeed, I
find that it clearly interfered with the election. I further
conclude , based on the potency and extent of Respond-
ent's unlawful conduct, that it is improbable that the use
of traditional remedies here would be sufficient to insure
a fair rerun election, and that the desires of the employ-
ees with respect to the Union as established by union-au-
thorization cards is more reliable. Cf. Sturgis-Newport
Business Forms, 227 NLRB 1426 (1977), enfd. 563 F.2d
1252 (5th Cir. 1977); Schulte's IGA Foodliner, 241 NLRB
855 (1979); Dependable Lists, Inc., 239' NLRB 1304
(1979). Accordingly , I find that Respondent violated
Section 8(a)(5) and ( 1) as alleged and I shall recommend
the issuance of a bargaining order.
Considering the foregoing , and having found that the
Respondent 's conduct described above during the critical
period prior to the representation election of October 14,
1983, ][ recommend to the Board with respect to Case 6-
RC-9391 that the petition be dismissed in view of the is-
suance of a remedial bargaining order in an appropriate
unit.
CONCLUSIONS OF LAW
1. By interrogating employees concerning the union
activities of others , by creating the impression among
employees that their union activities and the activities of
others were under surveillance , by soliciting , coercing,
instructing , and assisting employees to repudiate the
Union and revoke authorization cards, by informing em-
ployees it would not negotiate with the Union , by threat-
ening discharge directly and through stating that a strike
would be inevitable and striking employees terminated
and that the plant would be closed, by threatening em-
ployees with loss of economic benefits through reduced
wages, and by coercively interrogating an employee con-
cerning intended testimony without appropriate safe-
guards, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
2. By discriminatorily discharging employees Ondo
and Cressley, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. By refusing to recognize and bargain with the
Union after it was authorized by a majority of the mem-
bers of the appropriate unit set out above while engaging
in serious and substantial unfair labor practices as set out
above, Respondent has engaged and is engaging in unfair
labor practices within the meaning of' ection 8 (a)(5) and
(1) of the Act.
4. The unfair labor practices set forth above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
5. Except as found above , Respondent has not engaged
in any other unfair labor practices alleged in the com-
plaint.
THE REMEDY
It having been found that Respondent engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, my recommended Order will require
that it cease and desist therefrom and take certain affirm-
ative actions necessary to effectuate the policies of the
Act. Having found that Respondent discriminatorily dis-
charged Ondo and Cressley , Respondent shall be re-
quired to offer Ondo and Cressley immediate and full re-
instatement to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges , and shall make each of them whole
for any loss of pay and earnings that they may have suf-
fered as a result of any discrimination against them. Any
backpay found to be due shall be computed in accord-
ance with the formula set forth in F. W Woolworth Co.,
90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).10
Respondent 's unfair labor practices were widespread,
touched all of the employees, and spanned virtually the
entire period from the commencement of the union ac-
tivity until the election . They demonstrate a general dis-
regard for the employees ' fundamental statutory rights
and therefore warrant the imposition of a broad injunc-
tive order precluding Respondent , its officers, agents,
successors, and assigns from engaging in unfair labor
practices "in any other manner." See Mid-Continent Re-
frigerated Service, 228 NLRB 917 (1977), and Federal
Alarm, 230 NLRB 518 (1977).
I have previously found that a bargaining order is ap-
propriate from the circumstances of this case . Consistent
with the Board 's policy, I shall recommend that the bar-
gaining order be made effective from August 10, 1983,
the date Respondent was advised that the Union
10 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
achieved its majority status after Respondent had com-
menced its unfair labor practices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent , Marion Center Supply , Inc., Marion
Center, Pennsylvania , its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees concerning the union ac-
tivities of others.
(b) Creating the impression among employees that
their union activities and the activities of others are
under surveillance.
(c) Soliciting , coercing , or assisting employees to repu-
diate or revoke authorization of Teamsters, Chauffeurs,
Warehousemen and Helpers Local No. 110 , affiliated
with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, or any
other union.
(d) Informing employees it would not negotiate with a
union , that it would close down operations , or reduce
benefits or wages, or threatening to discharge employees
by forcing a strike and employing replacements, if a
union were authorized.
(e) Coercively interrogating employees regarding in-
tended testimony before this Board without appropriate
safeguards.
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with Teamsters, Chauffeurs , Warehousemen and Helpers
Local Union No. 110, affiliated with International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, as exclusive collective -bargaining
representative of the employees of the Respondent in the
appropriate bargaining unit as follows:
All full-time and regular part-time production and
maintenance employees including all driver-opera-
tors, batch plant operators , and yard workers em-
ployed by Marion Center Supply , Inc., at its Marion
Center, Pennsylvania , facility; excluding all office
clerical employees, professional employees and
guards and supervisors as defined in the Act.
(b) Offer William Ondo and Michael Cressley immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole
for any loss of earnings and other benefits suffered as a
11 If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall , as provided in Sec . 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
result of the discrimination against them , in the manner
set forth in the remedy section of the decision.
(c) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(d) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its plant in Marion Center, Pennsylvania,
copies of the attached notice marked "Appendix."12
Copies of the notice , on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(I) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT interrogate our employees regarding
their activities in support of Chauffeurs, Teamsters and
Helpers Local Union No. 110, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
MARION CENTER SUPPLY
housemen and Helpers of America, or the activities and
support of other employees with respect to the Union.
WE WILL NOT create the impression among employees
that their union activities and the activities of others are
under surveillance.
WE WILL NOT Solicit , coerce, or assist employees to
repudiate or revoke authorization of any union.
WE WILL NOT inform employees we will not negotiate
with a union, or close down operations, reduce benefits
or wages, or threaten to discharge employees directly or
by forcing a strike and employing replacements, if a
union is authorized.
WE WILL NOT coercively interrogate employees re-
garding intended testimony before the National Labor
Relations Board without appropriate safeguards.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL NOT refuse to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of our employees in the following appropriate
unit:
All full-time and regular part- time production and
maintenance employees including all driver-opera-
tors, batch plant operators, and yard workers em-
ployed by Marion Center Supply, Inc., at its Marion
275
Center, Pennsylvania, facility; excluding all office
clerical employees, professional employees and
guards and supervisors as defined in the Act.
WE WILL, on request, recognize and bargain with
Chauffeurs, Teamsters and Helpers Local Union No. 110,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive collective-bargaining representative
of our employees in the unit described above and, if an
understanding is reached embody such understanding in
a written signed agreement.
WE WILL offer William Ondo and Michael Cressley
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings , plus interest.
WE WILL notify William Ondo and Michael Cressley
that we have removed from our files any reference to
their discharge and that the discharge will not be used
against them in any way.
MARION CENTER SUPPLY, INC.