McMahon's Sales Co.

National Labor Relations Board - Board Decisions

Sep 26, 1967

167 N.L.R.B. 586 (N.L.R.B. 1967)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas McMahon , d/b/a McMahon's Sales Co. and
Warehousemen 's Union Local 17, International
Longshoresmen 's & Warehousemen 's Union
Thomas McMahon , d/b/a McMahon's Sales Co. and
Warehousemen's Union Local 17, International
Longshoresmen 's& Warehousemen 's Union, Peti-
tioner . Cases 20-CA-4179 and 20-RC-7010
September 26, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On June 14, 1967, Trial Examiner William E.
Spencer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
certain portions of the Trial Examiner's Decision
and a brief in support thereof.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.
The Trial Examiner found that the Respondent
had violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act. However, he did not
recommend that Reveles, a discriminatorily
discharged employee, be reinstated and given
backpay, the usual remedy for such a discharge.
The Trial Examiner omitted this remedy because he
believed it possible the Respondent had been preju-
diced by the General Counsel's change of position
in asking for no reinstatement and backpay for
Reveles in the first hearing, but seeking the remedy
after the first hearing and throughout the second
hearing. We have reviewed the facts surrounding
the General Counsel's change of position and con-
clude, in disagreement with the Trial Examiner, that
the Respondent was not in any respect prejudiced
by the change of position. Omission of the normal
remedy of backpay and reinstatement in these cir-
cumstances would be an injustice to Reveles, and
would permit the Respondent to profit from
misleading the Board, as shown below.
At the first hearing, the General Counsel dis-
claimed interest in reinstatement and backpay for
Reveles because the Respondent had led the
General Counsel to believe that it (the Respondent)
had received an unsolicited letter from its insurance
agent stating that Reveles was uninsurable at the
time of his discharge (hence unsuitable for rein-
statement). When the General Counsel discovered,
at the first hearing, that the Respondent had sol-
icited the letter purporting to establish Reveles'
uninsurability, the General Counsel withdrew his
disclaimer and asked for reinstatement and backpay
for Reveles. Thereafter, a further hearing was held
on April 11, 1967, for the purpose of providing the
Respondent an opportunity to defend on the revised
basis of the General Counsel seeking reinstatement
and backpay for Reveles. As found by the Trial Ex-
aminer, the Respondent never established that
Reveles was uninsurable.
We do not believe the Respondent was preju-
diced by the General Counsel's change of position.
The Respondent's defense throughout the proceed-
ing was that Reveles was discharged because he
was uninsurable. Such a defense was not dependent
on whether the General Counsel did or did not seek
reinstatement and backpay for him. Moreover, a
second hearing was ordered precisely to give the
Respondent full opportunity to marshal its argu-
ments on Reveles' discharge in light of the General
Counsel's request for reinstatement and backpay.
Any relaxation in the Respondent's defense at the
first hearing could have been remedied at the
second hearing, without prejudice from any earlier
holding back of its best effort. In fact, the Respond-
ent introduced new testimony and documentary
evidence at the second hearing.
We shall therefore provide the normal remedy for
the unlawful discharge of Reveles.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Thomas McMahon, d/b/a McMahon's Sales Co.,
his agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recom-
mended Order as herein modified:
1. Insert the following as subparagraphs 2(a) and
(b), and reletter the present subparagraphs (a), (b),
and (c), accordingly:
"(a) Offer to reinstate Louis C. Reveles, with
backpay and 6-percent interest, to his former or
substantially equivalent position without prejudice
to his seniority or other rights and privileges.
Backpay shall be computed in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716.
Notify the above-named employee if presently
serving in the Armed Forces of the United States of
167 NLRB No. 78
McMAHON 'S SALES CO
his right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
"(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, time cards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms hereof."
2. Add the following as the first indented para-
graph of the notice:
WE WILL offer to Louis C. Reveles his
former job or an equally good one, and pay him
for wages he lost as a result of his discharge.
He will keep his seniority and other rights if he
takes the job we offer.
[3. Add the following as the last indented para-
graph of the notice:
WE WILL notify the above-named employee
if presently serving in the Armed Forces of the
United States of his right to full reinstatement,
upon application, in accordance with the Selec-
tive Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.]
IT IS FURTHER ORDERED that the petition for cer-
tification of representative filed by the Petitioner in
Case 20-RC-7010, be, and it hereby is, dismissed,
and all prior proceedings held thereunder be, and
they hereby are, vacated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER , Trial Examiner This is a con-
solidated case consisting of an unfair labor practice case
(20-CA-4179) and a case involving objections to conduct
affecting the results of an election (20-RC-7010).
In Case 20-CA-4179, a charge was filed on August 2,
1966, and an amended charge on October 6, 1966, by
Warehousemen ' s Union , Local 17, International
Longshoremen ' s and Warehousemen ' s Union,
hereinafter called the Union . Pursuant to the said
charges, the General Counsel of the National Labor
Relations Board , hereinafter the Board , issued his com-
plaint dated October 7, 1966, alleging in substance the
commission of unfair labor practices by the Respondent
herein in violation of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, hereinafter called the Act.
Respondent in its duly filed answer denied having en-
gaged in any of the alleged unfair labor practices.
In Case 20-RC-7010, on a petition filed by the Union
on June 1, 1966, and pursuant to a Decision and
Direction of Election by the Regional Director dated
June 24 , 1966, an election among Respondent's em-
ployees in an appropriate unit was conducted on July 26,
1966. The election resulted in a tie vote and three chal-
lenged ballots . On July 29, 1966, the Union filed timely
objections to conduct affecting election results. By his
Supplemental Decision dated October 7 , 1966, the Re-
gional Director sustained the challenges to the three bal-
587
lots in question , found sufficient substance to two of the
Union's four objections to the election to require a hear-
ing before a Trial Examiner , and issued his order con-
solidating Cases 20-CA-4179 and 20-RC-7010. The
two objections upon which a hearing was ordered were
substantially identical with allegations of unfair labor
practices in Case 20-CA-4179.
Pursuant to due notice a hearing on the consolidated
complaint , with all parties represented , was heard by me
at Sacramento , California, on February 2 and April 11,
1967.
Upon the entire record in the case, my observation of
witnesses, and consideration of briefs filed with me by the
General Counsel and the Respondent , respectively, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Thomas McMahon, d/b/a McMahon's Sales Co., the
Respondent herein, is a sole proprietorship with places of
business in Sacramento and Chico, California, and Reno,
Nevada. It is engaged in the wholesale sale of poultry,
meat, eggs, and related products. During a material
period, in the conduct of its business, it purchased and
received goods and materials directly from outside the
States of California and Nevada valued in excess of
$50,000, and sold and shipped goods of a value in excess
of $50,000 to customers outside the States of California
and Nevada.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Union's Majority in an Appropriate Unit
As of May 29, 1966, the Union held membership appli-
cation cards duly executed by five of the six employees
then included in the following unit admittedly appropriate
for all purposes of collective bargaining:
All warehousemen-driver, employees of the Respond-
ent at its Sacramento and Chico, California, and Reno,
Nevada, operations, excluding salesmen, office clerical
employees, guards and supervisors as defined in the Act.
B. Recognition Demands
By letter dated May 31, Frank E. Thompson, the
Union's secretary, advised Respondent's owner, Thomas
McMahon, of its representation claims, requested recog-
nition of the Union as bargaining representative of
Respondent's employees in an appropriate unit, and
further advised that it was filing a representation petition
with the Board. Respondent made no response to this
letter. On June 1, the Union filed a representation peti-
tion with the Board, and on June 2 the Board advised
Respondent by letter of the receipt of the petition. Mc-
Mahon received this letter on June 3. On the afternoon of
June 3, Thompson made a phone call to Respondent and
McMahon answered. Thompson attempted to discuss
with McMahon his letter requesting recognition, but Mc-
Mahon informed Thompson that he did not wish to talk
to the latter, and hung up. By registered letter dated June
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7, Thompson addressed Respondent concerning recogni-
tion and other matters, but Respondent refused delivery
of the letter and it was returned to Thompson unopened.
C. The Election
Pursuant to a Decision and Direction of Election by
the Board ' s Regional Director , an election for employees
in the appropriate unit was held on July 26. Of approxi-
mately nine eligible voters, three voted for, three against,
representation by the Union , and three votes were chal-
lenged . The Union filed objections to the election. Upon
investigation of the challenges and the Union ' s objec-
tions, the Regional Director sustained the three chal-
lenges and overruled two of the four objections. The
other two , consolidated for hearing with the present un-
fair labor practice case , alleged , in substance , ( 1) that
Respondent discharged Louis C. Reveles on June 3
because of his union activities, and (2) engaged in other
conduct violative of Section 8(a)(1) of the Act, thereby
dissipating the Union ' s majority . Objections ( 1) and (2)
are for all practical purposes identical with corresponding
allegations of the complaint
D. Reveles' Discharge
After some 2-1 /2 years in Respondent ' s employ,
Reveles was discharged by Respondent ' s owner, Mc-
Mahon , on June 3, 1966. Reveles signed a union card on
May 29. He testified that on the morning of June 3, as he
was waiting to be given his work orders for the day, Mc-
Mahon approached him and asked if he knew a Frank
Thompson ; Reveles replied in the negative ; McMahon
then showed him a letter that had the Union's address on
it and asked him if he knew anybody from that Union,
Reveles replied that he knew an Oscar Jordan , a union
representative ; McMahon then wanted to know why
Reveles was " talking to the union" and Reveles replied
that he was not making enough money; McMahon then
said that if the Union "did come through " he was going to
sell his equipment and "go into direct shipment ," and that
when Reveles finished his work for that day he was to
pick up his check , that he "was all through ." Victor Zito,
a salesman , was present during this conversation. Mc-
Mahon admitted that he talked to Reveles on June 3 and
discharged him on that date and further testified that he
gave Reveles no reason for the discharge . Following his
conversation with McMahon, Reveles called the union
office and reported on his discharge.
Respondent 's defense to the discharge is that Reveles
was guilty of a traffic violation occurring on or about May
5, 1966, and thereupon became uninsurable
The testimony is that in February 1966, Robert M.
Henderson , an insurance broker through whom Respond-
ent carries its public liability insurance , talked to Re-
spondent 's employees , including Reveles, about traffic
violations and informed them , with McMahon ' s approval,
that "another ticket or an accident , they were through."
In the following April , Reveles was involved in a minor
accident when he "nicked a car." The claim of $37 was
paid in May. Admittedly , Reveles reported the accident
to McMahon , and admittedly he received neither penalty
nor reprimand therefor . Henderson testified that no ac-
tion was taken in the matter because of the small sum in-
volved.
On about May 5, Reveles received a traffic-violation
citation for making an unlawful left turn . No accident or
damage to any vehicle was involved . Reveles promptly
reported the incident to his superiors . Nothing was said
to him at that time about discharge or any other discipli-
nary action . McMahon testified , " I wouldn 't say that I
told him anything regarding the ticket . In other words, the
ticket was his baby."
Respondent 's employees who drive out of the State are
required to take periodic physical examinations subject
to Interstate Commerce Commission regulations. These
examinations were scheduled for June 3 , 1966. Mc-
Mahon first testified that he did not recall having in-
formed Reveles a few days prior to June 3 that he was to
take the examination, but on being shown a prehearing af-
fidavit given the Board , admitted the truth of the state-
ment therein : " I did remind Reveles three or four days
prior to June 3rd that the appointment had been made."
McMahon testified that he decided to discharge
Reveles when the latter received a traffic-violation cita-
tion on a date which he recalled as May 20 but which was
established to have been on May 5. His explanation for
the delay in effectuating the discharge was that he was
waiting until a suitable substitute for Reveles could be
found . In his prehearing affidavit , however, McMahon
stated : " I decided to terminate Louis Reveles about a
week prior to June 3 , 1966, the date of his actual termina-
tion " And with respect to a Mr. Spittler, who replaced
Reveles and who had previously worked for Respondent,
McMahon, upon being asked , "When did you first con-
tact him about taking the place of this employee you were
going to discharge ?" testified, "We contacted him right
away. We had his phone number."
With respect to his conversation with Reveles at the
time of the latter 's discharge , McMahon testified , " I just
told him that he was through ." He denied that anything
was mentioned in this conversation about the Union or
union activities but admitted that he mentioned the letter
he had received from Thompson , the Union's representa-
tive. Zito, who was with McMahon at the time of
Reveles' discharge, when questioned concerning the con-
versation between McMahon and Reveles, testified, "All
I know is about their driving citations, and accidents ...
about this accident and that he was going to terminate his
job due to the fact of this accident and citation " Zito did
not "recall" any mention of union or union activities, and,
later , denied that there was such mention by McMahon.
The Respondent in its defense relies heavily on
Reveles' alleged uninsurability, which if established,
would militate against his reinstatement and backpay
though not necessarily a finding that he was discrimina-
torily discharged Its insurance broker, Henderson,
testified - rather vaguely , I thought, or maybe it was only
that the subject matter was vague - about a "verbal un-
derstanding" among Henderson , McMahon , and the in-
surance company which was to carry Respondent's lia-
bility insurance , reached in the summer of 1965, by which
drivers found deficient as to their insurability would no
longer be insured , and McMahon was to inform Hender-
son of all new drivers so that they could be investigated,
"checked out," by the insurer. Admittedly , the insurance
policies were silent in these matters. It appears that from
February 1966, when Henderson met with McMahon
and his employees and informed the latter that further
traffic violations would result in dismissal, McMahon
would customarily call Henderson if and when such
violations occurred . According to McMahon he informed
Henderson of Reveles' traffic violation of May 5 as soon
as he learned of it, but Henderson testified that Mc-
McMAHON'S SALES CO. 589
Mahon first informed him of the incident around the first
of June: "whether it was the 3rd of June or the 2nd of
June, I wouldn't know." It is a reasonable inference that
he received this information from McMahon on June 2 or
3 because on the morning of June 3 he dictated the fol-
lowing letter, dated June 3, and at noon or later on that
day hand-delivered it to McMahon-
We have been advised by the company that the
caption driver is considered uninsurable and they do
not wish to continue coverage for Mr. Reveles.
Perhaps he can secure his own insurance and if he
wishes we will be happy to discuss the reasons be-
hind the company's declaration of coverage.
Henderson testified that this letter was written following
a telephone conversation with the insurer on June 3.
Henderson further testified at the reopened hearing on
April 11, 1967,1 that pursuant to a telephone call he made
to Respondent's insurer, and a followup letter the said in-
surer sent the following letter dated April 7, 1967:
This letter will confirm our telephone conversation
that in view of the adverse driving record of Louis
Reveles, our only alternative was to request that he
be restricted from coverage under this policy.
I am indeed sorry for our drastic approach, but in
view of the seriousness involved, I am sure you will
understand.
In this connection it is noted that Reveles, while in
Respondent's employ, was involved in an accident which
occurred about November 1965, but as of June 3, the
date of his discharge, there had been no "disposition" of
whether Reveles or the other driver was at fault. Hender-
son testified, "It was an open claim on the books, but he
rear-ended two ladies in a car, and we were aware of the
fact that the company [insurer?] was holding this open.
" The claim was settled in October 1966, for a sum
slightly under $2,000. Whether this matter had anything
to do with the insurer's letter of April 7, 1967, stating that
Reveles was "restricted" from coverage under Respond-
ent's policy, was not developed at the hearing.
Conclusions
I accept Reveles' version of his conversation with Mc-
Mahon at the time of his discharge. McMahon and his
subordinate Zito denied that the Union or union activities
were mentioned in this conversation, but McMahon ad-
mitted, as I understand his testimony, that he made
reference to the letter he had received from the Union's
representative, Thompson, and while McMahon testified
that he gave Reveles no reason for the discharge, Zito, his
would-be corroborator, testified that McMahon told
Reveles that he was being discharged for traffic viola-
tions, thus inadvertently, no doubt, contradicting the em-
ployer he so obviously was attempting to support, re-
gardless of truth or accuracy The fact that McMahon
waited from May 5, when the traffic violation allegedly
causing the discharge occurred, to June 3, after Mc-
Mahon had received the Union's demand for recognition,
finds no plausible explanation in this record, unless the
discharge rested on something other than the traffic cita-
tion in question. There is no showing that a replacement
for Reveles was not to be had just as speedily on May 5
as it was on June 3; that McMahon showed any concern
about the May 5 incident at the time he was informed of
it; or that he took any steps to inform his insurance broker
until after he was advised of the Union 's representational
claims. It is also undisputed on this record that a few days
prior to the discharge he instructed Reveles that he was
to take the physical tests required by the ICC for drivers
outside the State , something which he obviously would
not have done if he had at that time contemplated
Reveles' discharge . These several factors , added to vari-
ous inconsistences occurring throughout McMahon's
testimony , contribute to my conviction that he did in fact
interrogate Reveles concerning his interest in the Union
and that upon learning that Reveles was prounion, and
only then , did he decide to effectuate Reveles' discharge.
The discharge occurring in this context of unlawful inter-
rogation and expressions of union animus, without any
reference whatever to traffic violations or the discharg-
ee's alleged uninsurability , compels the conclusion of
antiunion motivation. McMahon's call to his insurance
broker, and his belated notification of Reveles' May 5
citation , were obviously designed to solicit support for an
otherwise untenable position , and his broker ', Henderson,
who had handled his insurance business for some years,
obliged with the letter dated June 3 which was deemed of
sufficient urgency that he hand delivered it to McMahon
on that same day.
Upon the entire record I find that the Respondent
discharged Reveles because of his prounion beliefs and
activities thereby discouraging membership in a labor or-
ganization , in violation of Section 8(a)(1) and (3) of the
Act.
E. Basurto Incident
Frank Basurto, who had been in Respondent's employ
some 6 years, testified that he was standing some 20 feet
away from Reveles on the morning of June 3, 1966, at the
time the latter was discharged, but did not overhear what
was said to Reveles by McMahon and/or Zito. According
to him, after they had terminated their conversation with
Reveles, they approached him and McMahon after
questioning him concerned his interest in the Union, told
him that if he "kept on with the union that he was going to
sell the trucks and sell the equipment and everything, and
just go on direct shipments." Both McMahon and Zito
denied that this conversation occurred.
On cross-examination, Basurto admitted that he was
"upset" because of the results of the July 17 election, but
denied that he had an argument with a fellow employee
about the way the latter voted. Jim Wesley Tunnell, the
employee in question, testified that following the election
Basurto, when he found out how Tunnell had voted, said
that Tunnell was a "Communist and a bum," whereupon
he, Tunnell, refused to continue to work with Basurto and
informed McMahon that he was quitting because of what
Basurto had called him. I credit Tunnell.
I have discredited McMahon and Zito on McMahon's
remarks to Reveles on the occasion of the latter's
discharge. Basurto's own credibility is questionable. He
followed Reveles to the witness stand, gave testimony al-
most identical with that of Reveles respecting Mc-
I In the initial hearing the General Counsel stated that he was not seek-
ing reinstatement and backpay for the alleged dischargee, Reveles After
the conclusion of the hearing, he changed his position and averred his in-
tention to seek reinstatement and backpay The hearing was thereupon
reopened to afford Respondent an opportunity to adduce further evidence
in support of its position that Reveles was uninsurable on and after the
date of his discharge
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mahon's interrogations and antiunion remarks, and ob-
serving him testify I did not have the impression of
veracity as when Reveles was testifying. I base no
findings of unfair labor practices on Basurto's testimony,
an omission which does not substantially affect an ap-
propriate remedy in this case.
F. The Refusal to Bargain
McMahon's explanation of his failure to respond to
Thompson's recognition demands, was that having been
informed that a representation petition had been filed
with the Board he regarded the matter as thenceforth rest-
ing in the hands of the Board and that no further commu-
nication with the Union was required. It is settled law
that the filing of a representation petition by a labor or-
ganization does not ipso facto cancel its prior or contem-
porary claim of majority representation and bargaining
rights or justify an employer's refusal to recognize those
claims. Only a good-faith doubt of the Union's majority
justifies such a refusal. There is no evidence that the
Respondent entertained such a doubt. It did not question
the Union's claim of majority representation but rejected
it out of hand, abruptly terminating the telephone conver-
sation in which Thompson attempted to discuss the
Union's demand for bargaining rights, and returning
unopened the Union's followup letter in which it stated in
detail that which had been denied statement in the
preceding telephone conversation. McMahon's conduct
on these two occasions is sufficient to establish his bias
in the matter, a bias which was later voiced and exampled
in his discharge of Reveles. Under these circumstances
the election of July 17 cannot reasonably be said to have
represented the employees' free and untrammeled choice
in the matter of a bargaining representative.
While one may question the wisdom of the Union's
decision to proceed with the election in the face of its cer-
tain knowledge of Respondent's unlawful interference,
under the Bernet Foam doctrine (Bernet Foam Products
Co., Inc., 146 NLRB 1277), the Union did what it had a
right to do: proceed to an election with full knowledge of
Respondent's unlawful interference, with the assurance
that if the election results did not favor it, it could cause
them to be set aside and gain recognition on the basis of
its card majority. That majority was firmly established
and, under Board and court precedent, the application of
the Bernet Foam doctrine to the facts of this case is
required. Accordingly, I find that by its refusal to recog-
nize and bargain with the Union as the representative of
a majority of its employees in an appropriate unit, the
Respondent has engaged in conduct violative of Section
8(a)(1) and (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations
described in section I , above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
It has been found that the Respondent discharged
Reveles because of his union views and activities. The
usual remedy for such a discharge is reinstatement with
backpay The General Counsel at the outset of the initial
hearing in this case declared that while he was seeking a
finding of an 8(a)(3) violation with respect to Reveles, he
did not seek Reveles' reinstatement and/or backpay, for
the reason that he conceded that immediately following
his discharge Reveles was uninsurable. It is noted in this
connection that in his ruling on challenged ballots at the
election of July 26, the Board's Regional Director
sustained the challenge as to Reveles on the ground that
following his discharge he lost employee status, and
therefore voting rights, because of uninsurability. Ap-
parently, after a study and consideration of evidence
taken at the initial hearing in this case, the General Coun-
sel concluded that he had erred in his conclusion of
Reveles' insurability and accordingly reversed his posi-
tion on reinstatement and backpay. The Respondent was
afforded an opportunity in the reopened hearing to meet
this shift in position. It may be argued with considerable
persuasiveness that the Respondent was not therefore
prejudiced in the matter. It may also be argued, however,
that the whole course of Respondent's defense with
respect to the Reveles discharge was affected by the
General Counsel's declaration at the outset that he was
not seeking reinstatement and backpay. It is one thing to
be required to reinstate a discharged employee with
backpay, and another to be ordered to do no more than
post a cease-and-desist notice. Obviously, outside the
matter of insurability, the Respondent could not in the
reopened hearing materially alter its defense of the
Reveles discharge without the risk of further prejudicing
its case.
In short, not certain that an element of prejudice does
not lie in what I regard as the General Counsel's untimely
shift of position in the matter of remedy, I shall omit a
recommendation of reinstatement and backpay with
respect to Reveles. Otherwise, I would recommend the
usual remedial order, concluding as I do, that Reveles'
uninsurability at the time of his discharge has not been
proved. Any other conclusion must rest solely on the
testimony of Respondent's insurance broker, Henderson,
concerning some vaguely defined oral arrangement ar-
rived at in 1965 between Respondent, Henderson, and
the insurer, and his uncorroborated testimony concerning
an alleged telephone conversation he had with the insurer
on June 3, the date of Reveles' discharge. Aside from the
hearsay nature of this latter testimony, I was not at all im-
pressed with Henderson's testimony that the April 1966,
traffic accident in which Reveles was involved, was
passed over as too trivial to affect his insurability, but that
the later unlawful left-turn citation, involving no cost to
the insurer, was grave enough to warrant and require a
statement declaring his uninsurability. Henderson's
further testimony, that in May he followed Reveles when
the latter was driving Respondent's truck and observed
that he was exceeding the speed limit and reported the
matter to McMahon with a warning concerning Reveles'
continued insurability, appears to me to have been recol-
lected at the time of his testifying primarily to strengthen
what he recognized to be a shakey foundation for his
letter of June 3 declaring that Reveles was no longer in-
surable under Respondent's then existing policies. In this
connection, it is noted that this is not a- situation where
the Respondent could rely on Henderson's declaration
concerning Reveles' insurability, regardless of whether or
not he was in fact uninsurable. Respondent having wrong-
fully discharged Reveles normally could avoid a rein-
statement and backpay remedy only if it was able to
McMAHON'S SALES CO. 591
prove that Reveles was in fact uninsurable at the time of
the discharge, and that it has not done.
With respect to the insurer's letter of April 7, 1967, as-
suming without finding that it has probative weight, this
declaration that Reveles was "restricted" under Respond-
ent's policy, makes no mention of when such "restric-
tion" occurred, and it may very well have occurred, if at
all, only after the insurer's settlement in October 1966, of
accident claim in which Reveles was involved in
November 1965, and which was pending, without liability
having been established, at the time of the discharge.
Such matters might well be resolved in compliance
proceedings should the Board issue the usual order of
reinstatement with backpay.
Having found that the Respondent has unlawfully
refused to bargain with the Union thereby violating Sec-
tion 8(a)(5) of the Act, I shall recommend that the
Respondent bargain upon the request of the Union and,
if an understanding is reached, embody such understand-
ing in a signed agreement.
Respondent's violations are of such scope and
character as to require a broad cease-and-desist order.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce and a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All warehousemen-driver employees of the
Respondent at its Sacramento and Chico, California, and
Reno, Nevada, operations, excluding salesmen, office
clerical employees, guards and supervisors 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.
4. At all times since May 28, 1966, the Union has
been the exclusive representative of all the employees in
the aforesaid unit for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employ-
ment, or other terms and conditions of employment.
5 By refusing on June 1, 1966, and at all times
thereafter, to bargain collectively with the aforesaid labor
organization, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8 (a)(5) of the Act.
6. By discharging its employee Louis Reveles because
of his union and concerted activities thereby discouraging
membership in a labor organization, Respondent has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
7. Because of the aforestated conduct; by unlawfully
interrogating its employee, Reveles, concerning his union
beliefs and activities; and by threatening reprisals in the
event of union organization, the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8 The aforesaid labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to
Section 10(c) of the Act, as amended, it is recommended
that Respondent, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing, on request, to bargain collectively in
good faith with the Union as the exclusive collective-bar-
gaining representative of all employees in the aforestated
appropriate unit.
(b) Discouraging membership of any employee in the
Union, or any other labor organization, by discharging or
in any other manner discriminating against any employee
with regard to his hire or tenure of employment, or any
term or condition of employment, except as authorized in
Section 8(a)(3) of the Act.
(c) Interrogating employees concerning their union be-
liefs and activities, threatening them with reprisals for en-
gaging in union activities, or in any other manner interfer-
ing with, restraining, or coercing its employees in the right
to self-organization, to form their own labor organization,
to join or assist the Union, or any other labor organiza-
tion, to bargain collectively with representatives of their
own choosing, and to engage in concerted activities for
the purpose of collective bargaining, or for other mutual
aid or protection, or to refrain from any or all such activi-
ties except to the extent that such right may be affected
by agreement requiring membership in a labor organiza-
tion as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request bargain collectively with the Union
as the bargaining representative of the employees in the
above-described appropriate unit with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its offices in Sacramento and Chico,
California, and Reno, Nevada, copies of the attached
notice marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for Region 20, after
being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent im-
mediately 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. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. 3
2 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS ON THE UNION'S OBJECTIONS TO
CONDUCT AFFECTING ELECTION RESULTS
On the basis of findings heretofore made in section III,
above, it is recommended that the Board's Regional
Director for Region 20 sustain Objections (1) and (2) to
conduct affecting the election results filed by the Union
on July 29, 1966, and set the said election aside.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in
Warehousemen's Union, Local 17, International
Longshoremen's and Warehousemen's Union, or
any other labor organization, by discharging or other-
wise discriminating against employees in regard to
their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT interrogate our employees concern-
ing their union views and activities, threaten reprisals
if they affiliate with or support a labor organization,
or in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to
self-organization, to form, join or assist the above-
named Union, or any other labor organization, to
bargain collectively through representatives of their
own choosing, or to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities.
WE WILL bargain collectively, on request, with the
above-named Union as the exclusive representative
of, employees in the bargaining unit described below
with respect to wages, rates of pay, hours of employ-
ment, or other terms and conditions of employment,
and, if an understanding is reached, embody such un-
derstanding in a signed agreement. The bargaining
unit is:
All warehousemen-driver employees for our
Sacramento and Chico, California, and Reno,
Nevada, operations, excluding salesmen, office
clerical employees, guards and supervisors as
defined in the National Labor Relations Act
All of our employees are free to become, remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent that such right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
THOMAS MCMAHON, D/B/A
MCMAHON'S SALES CO.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compli2nce with its provisions, they may communicate
directly with the Board ' s Regional Office , 13050 Federal
Building, 450 Golden Gate Avenue , Box 36047, San
Francisco , California 94102, Telephone 556-3197.