Mid-East Consolidation Warehouse

National Labor Relations Board - Board Decisions

Jan 23, 1980

247 N.L.R.B. 552 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-East Consolidation Warehouse, A Division of
Ethan Allen, Inc. and Truck Drivers Local Union
No. 649, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 3-CA-7004 and 3-RC-6873
January 23, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On January 4, 1979, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this
proceeding. Thereafter, both Respondent and counsel
for the General Counsel filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extend consistent herewith.
The Respondent, Ethan Allen Inc., is a furniture
manufacturer with home offices in Danbury, Connect-
icut. Mid-East Consolidation Warehouse, the opera-
tion involved in this case, is a division of Ethan Allen.
Mid-East consists of three separate warehouses, the
largest one located in Mayville, New York, and two
others in Falconer and Salamanca, New York. The
primary purpose of a consolidation warehouse in
Respondent's business is to store furniture for long
periods of time. When furniture leaves the consolida-
tion warehouse, it is shipped by truck or rail either to
a company distribution center or directly to a dealer.
Although Ethan Allen has owned the warehouses in
question for a number of years, as well as the factories
in this area which manufacture the furniture stored in
these warehouses, it was only in January 1976 that
these warehouse operations, which also involve truck-
ing, became a separate division within the corporate
operation. At that time, Donald Mawhir, who had
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. In reaching this finding, we
have taken into account that in some instances the Administrative Law Judge
did not specifically state that he was making a credibility resolution where a
conflict in testimony occurred. However, since in those instances he found
events took place in a way which is consistent with only one of the versions of
the conflicting testimony, it is clear that he implicitly credited the witness
whose version he accepted.
247 NLRB No. 90
served as traffic manager at the Mayville facility, was
named manager of the new division. When the
division was created, Mawhir's office was moved from
Mayville to Falconer, while the truckdrivers for the
division remained at the Mayville facility. This case
involves the alleged reaction and conduct of Respon-
dent to its drivers' protected concerted activities.
I. THE UNFAIR LABOR PRACTICES
The drivers at the Mayville facility have never been
organized. In 1972, before the Mid-East Division was
created, there was an organizational drive among
them for another union. That drive was defeated by
Respondent. After the 1972 campaign, rumors of
union organizing continued, and were prevalent at the
time this case arose. It was in this context that, in his
office in Falconer, in December 1976, Mawhir told
driver Larry Rogers, one of the alleged discriminatees
in this case, that "If the drivers mess around with a
union, we'll all be out of a job."' Based on this
incident, the Administrative Law Judge found that
Respondent threatened employees with loss of jobs in
violation of Section 8(a)(1) of the Act. We agree. In so
doing, we reject Respondent's contention that a
different result is warranted because the Administra-
tive Law Judge incorrectly misstated Rogers' testimo-
ny as to what Mawhir said. In his Decision, the
Administrative Law Judge states that Mawhir told
Rogers "that the drivers would be out of a job if they
continued to 'mess around' with the Union"; Rogers'
actual testimony, as described above, was that Mawhir
told him, "If the drivers mess around with a union,
we'll all be out of a job." We find that the Administra-
tive Law Judge's paraphrase of Rogers' testimony does
not change the substance and thrust of Mawhir's
remark. The unlawful coercive impact of these two
statements is the same; in either case, the employee is
threatened with the loss of his job as the result of
employee support of a union.
In late December 1976, or early January 1977,
Raymond Wood, one of the Mayville drivers, went
into Mawhir's office, and was asked by Mawhir how
he and the other drivers were feeling. Wood remarked
that it had been quite a while since anyone had
received a raise, and that the drivers felt it was about
' These findings are based on Rogers' testimony. In excepting to all findings
made by the Administrative Law Judge concerning this incident, Respondent
contends that Mawhir had not yet moved into his Falconer office by this time,
and that the incident could not, therefore, have taken place as Rogers testified.
Respondent insists that Mawhir did not move into his Falconer office until the
following January. This is clearly erroneous, since all of Respondent's
witnesses testified that Mawhir moved to Falconer in January 1976, almost a
year before this incident. Indeed, Respondent's own brief gives January 1976
as the date of Mawhir's move to Falconer. Nevertheless, the Administrative
Law Judge has, at one point in his Decision, mistakenly accepted Respon-
dent's claim that Mawhir moved after the incident in question, and at another
point incorrectly stated that Rogers met with Mawhir in December 1975.
552
MID-EAST CONSOLIDATION WAREHOUSE
time to receive one. Wood also told Mawhir that there
was a rumor going around about a union. Mawhir told
him, "Gee, Ray, you better try to talk these guys out
of it. The last time this happened about the Union, you
know, the company wouldn't put up with that." By
this statement we find that Mawhir threatened retalia-
tion against employees if they continued to support a
union and thereby violated Section 8(a)(1) of the Act.'
On February 19, 1977, Mawhir conducted a meet-
ing of the drivers in Mayville. Mawhir mentioned that
a 5-percent salary increase was possible. When some
of the drivers complained about this, and about not
having received other promised merit increases, and
another suggested that a 50-cent-per-hour increase
was warranted, Mawhir responded, as found by the
Administrative Law Judge, that they were lucky to
have jobs and that if they did not like what they were
receiving, they should get out.' The Administrative
Law Judge found no violation in Mawhir's statement
and the General Counsel has excepted to the former's
failure to do so on the ground that Mawhir's admoni-
tion to the employees to leave if they did not like what
they were receiving constituted an implied threat of
reprisal. We find merit in that exception. Mawhir's
statement must be considered against the background
of his already expressed concern to Rogers and Wood
that it would be to the drivers' detriment if they again
were considering unionization, as well as their com-
monly voiced complaints at the meeting about the
paucity of the mentioned raise and Respondent's
broken promises concerning merit increases. It is also
noted that a counterfigure of 50 cents per hour was
proposed by one of the employees just before Ma-
whir's statement, to the effect that they could leave if
they did not like it, was made. In these circumstances,
Mawhir's statement could reasonably be interpreted
by the assembled employees to mean that Respondent
not only did not welcome disagreement with the wages
and benefits it offered, but did not favor employees
' The Administrative Law Judge found a violation in this incident, but
characterized Mawhir's statement as a suggestion to Wood that the latter
dissuade the drivers from supporting the Union. We find instead that
Mawhir's statement constituted a threat that the Company would retaliate
against the drivers for their union activities.
Respondent excepts to the Administrative Law Judge's finding, inter alia,
on the ground that the complaint did not give Respondent notice of this
allegation. The complaint alleges that Respondent, by its supervisor, Donald
Mawhir. threatened in December 1976 to fire its employees if they joined or
assisted a labor organization. If the incident took place a few weeks later, in
January 1977, Respondent was still adequately informed by the complaint
about the nature of the inquiry. In any event, even if this allegation was not
the subject of a particular complaint allegation, the issue was nevertheless
fully litigated and findings were appropriately made. Valleydale Packers, Inc..,
238 NLRB 1340 (1978).
' The Administrative Law Judge apparently relied on Larry Rogers'
testimony in making this finding. Rogers testified that "Mr. Mawhir became
quite angry and stated that we ought to feel lucky that we had our damn jobs
and that if we didn't like what we were making, we could get the hell out."
Other drivers' versions of this incident varied slightly. Thus, Floyd Tarr
testified that "I remember Mr. Mawhir saying that if anybody wanted the big
money, they would have to go elsewhere to get it because they weren't about
remaining in its employ who would choose to band
together for their mutual aid and protection to seek
better wages or other terms and conditions of employ-
ment-whether through the agency of a union or
while acting together in concert.' Mawhir's statement,
therefore, tended to inhibit employees in their Section
7 rights. Accordingly, we find that Mawhir's state-
ment that the employees should get out if they did not
like what they were receiving violated Section 8(a)(1)
of the Act. See Ramar Dress Corp., et aL, 175 NLRB
320, 327 (1969). See also Triana Industries, Inc., 245
NLRB No. 161 (1979).
After the February 19 meeting described above,
nine drivers went to the Lakeview Hotel where they
signed union authorization cards given them by fellow
employees Larry Rogers and David Olson, to whom
they afterwards returned the cards. Rogers and Olson,
who had obtained the cards from the union headquar-
ters on February 18, obtained cards from two other
drivers later that evening, bringing the total number of
cards collected to 11. Two additional cards were
obtained on March 5. Respondent refused the Union's
demand for recognition on February 21, and a petition
was filed on February 23, 1977.'
Eugene Chelton was one of the drivers who signed
an authorization card on February 19. He made a run
during the following week, and went into the drivers'
room in Mayville on February 26 to turn in his bills
and ascertain his route for the coming week. Chelton
testified that Mawhir asked him, inter alia, if Chelton
knew which employees had signed union cards, and
whether Chelton himself had signed a card. Chelton
told Mawhir only that he had signed a card. The
Administrative Law Judge concluded that Mawhir's
questioning of Chelton about the union activities of
other drivers and about his own union activities was a
violation of Section 8(a)(l).' We agree.
Another meeting of drivers was held by Mawhir at
Mayville on March 19. Reading from a prepared
to pay it." Clifford Hammond stated, "He said that if we wanted more money
we would have to go somewhere else." David Olson testified, "We thought we
had fifty cents an hour, and we were told that if we expected to get that, we
had to go somewhere else to get a job." Mawhir's version of this meeting is in
basic accol d with that of the drivers as to the discussion about wage increases;
Mawhir did not specifically deny making the remark about employees having
to leave for more money, but stated that he could not recall any further
discussion.
' We find the discussion of the salary increase by the employees, which is
admitted by Mawhir, to be protected concerted activity under the Act. The
matter of the salary increase was of moment to the group, and whatever was
said to Mawhir about it by any individual driver was necessarily to be for the
benefit of the group. Hugh H. Wilson Corporation, 171 NLRB 1040, 1046
(1968), enfd. 414 F.2d 1345 (3d Cir. 1969), cert. denied 397 U.S. 935 (1970).
'The unit sought was all of the truckdrivers, including the mechanic-driver
and the dispatcher-driver, employed by the Mid-East Consolidation Ware-
house. The truckdrivers for the Mid-East Division are headquartered at the
Mayville facility.
' The Administrative Law Judge finds this incident occurred as related by
Chelton, thereby crediting Chelton's version as against the conflicting version
given by Mawhir.
553
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speech, Mawhir announced that he had "good news"
and "bad news." The good news was that on March
21, 1977, the wages of the drivers were to be increased
by 35 cents an hour, and their meal allowances to be
increased by $1 a day. The bad news was that there
was a possibility that Conrail might discontinue the
railroad spur track into Mayville. Mawhir stated:
If that should happen and, frankly, it looks very
much like it is going to happen, it will mean a big
difference in all of our lives, beyond any question.
After detailing the nature of the problem, Mawhir
stated:
As soon as I have any definite news you may rest
assured you'll be the first to know. Frankly, I am
personally disturbed from a selfish standpoint-I
like Mayville, and would not like to leave, but I
want to say this to you-the Company is making
every effort to retain the spur line.
At this point, Mawhir closed the speech, saying:
I think I should mention the drive by the
Teamsters Union to organize all of you. I want to
emphasize that while we disagree with the Union
and think that it would not be for the best
interests for all of you to have the Union here; at
the same time, you have a right, as free Ameri-
cans, to vote any way you please. Your vote will
be secret and no one will know just how you vote.
If anyone should threaten you with a loss of your
job or any other penalty because you either vote
for or against the Union I want you to come to
me and I will take care of the situation very
quickly. I think this Company can very well
stand on its record of the past in the fair
treatment that you have received and I hope that
you will retain your [sic] confidence in getting a
fair shake for [sic] this Company and from me.
The Administrative Law Judge held, and we agree,
that Respondent violated Section 8(a)(1) of the Act by
its announcement of a wage increase on March 19. He
further held that Respondent violated Section 8(a)(1)
of the Act when Mawhir made a veiled threat that the
facility would close if the organizational drive contin-
ued. We also agree with this finding.'
With regard to the wage and meal allowance
increases, under settled Board policy, a grant or
promise of benefits during the critical preelection
period will be considered unlawful unless the employ-
er comes forward with an explanation, other than the
pending election, for the timing of the grant or
announcement of such benefits. The Singer Company,
Fredin Division, 199 NLRB 1195, 1196 (1972). Here,
' The Administrative Law Judge also inconsistently found elsewhere in his
Decision that the wage increase and the March 19 speech were not violative of
the Act. We do not adopt those comments.
Respondent argues that the increase in the wage rate
and the food allowance was an annual general wage
increase, granted after an annual review at company
headquarters in Danbury.
In support of its contention, Respondent presented
testimony that a 35-cent-an-hour increase was given to
the Mayville drivers in early March 1976. However,
Respondent did not present any evidence that an
increase in the food allowance was made in 1976, as a
result of the previous survey of wages. Thus, the 1977
food allowance increase is not explained by the
purported wage survey and, at least to that extent,
Respondent's contention concerning the basis for the
increased benefits is without support. We so find.
Respondent's argument that the wage increase was
made subsequent to an annual survey of wages by
Danbury officials is also undermined by the contradic-
tory testimony given by these officials about the
timing of this decision. William Hawkins, director of
distribution operations, testified that he informed
Donald Mawhir of the amount of the raise and the
food allowance on February 7, 8, or 9, which was
before the organizing campaign began. However,
Lawrence Thompson, the vice president of administra-
tion and physical distribution at corporate headquar-
ters, stated that the benefits were given as the result of
an annual review, and that "we had discussions with
Mr. Hawkins and the Director of Personnel, and we
didn't finalize anything until the end of February, first
of March, in that vicinity." This would date the
decision to grant these benefits after the beginning of
the organizing campaign, and injects into the issue an
element-union activity- which was missing under
the account given by Hawkins. In any event, the
failure of Respondent's witnesses to agree on when the
wage increase was decided upon casts doubt on
Respondent's claim that the increase was simply the
result of an annual survey of wages, as does Mawhir's
statement at his February 19 meeting of drivers.
Although Mawhir testified, in agreement with Haw-
kins, that Hawkins had informed him on February 7
or 8 of the amount of the raise and the food allowance
increase, Mawhir admittedly asked the drivers at his
February 19 meeting, in response to their inquiries
about possible raises, "what would 5 percent sound
like?" It seems unlikely that Mawhir would have
couched the possibility of a wage increase in this
manner if he had known at the time of the February
19 meeting the exact amount of the raise. Nor does it
seem likely that when the employees complained that
5 percent was not enough Mawhir would not have
attempted to placate them by then specifying what the
actual increase would be. This is especially true since
the actual raise was substantially more than 5 percent.
554
MID-EAST CONSOLIDATION WAREHOUSE
The record indicates, for example, that driver Larry
Rogers was receiving 4.15 an hour before the raise.
Thus, 35 cents was more than an 8-percent raise for
Rogers. Likewise, the record shows that driver Floyd
Tarr was earning $4.35 at the time of his May 12
discharge, meaning that Tarr was making $4 an hour
at the time of the raise, and therefore received an
almost 9-percent raise.9 Additionally, Mawhir then
made no mention at all of the food allowance increase,
which further casts doubt on Respondent's assertion
that the increase benefits were unconnected to the
union campaign. Thus, we conclude and find that the
raise and food allowance and their amount were
announced at the March 19 meeting in response to the
union campaign, and constituted an unlawful grant of
benefits during the critical preelection period, in
violation of Section 8(a)(X 1) of the Act.'0
We turn next to the allegation that Respondent
threatened that the plant would close if the organiza-
tional drive continued. This allegation is based on the
portion of the speech dealing with the possible
discontinuance of the railroad spur, and must be
considered in the context of the preceding announce-
ment of a wage increase which we have held to be a
violation of Section 8(a)(1) of the Act, and the
previous conduct which we have found to be unlawful.
Furthermore, we note that this discussion about the
railroad spur was sandwiched between the announce-
ment of the wage increase and Mawhir's comments
about the union organizing campaign. Thus, in the
portion of the speech in question, Mawhir told the
employees, inter alia, that, while it looked very much
like the railroad shutdown was going to happen, "the
Company [is] making every effort to retain the spur
track." Implicit in these remarks was the unspoken
alternative that if the Company ceased its efforts the
track would be closed and so, likely, would be the
Mayville facility. Surely this implication was not lost
on the employees. Nor, in light of Mawhir's remarks
about the Union that immediately followed, is it likely
that the employees missed the connection between the
Company's continuing those efforts and their union
sympathies. But if they had any doubt that nonsup-
port of the Union was the quid pro quo for Respon-
dent's efforts covering the spur, Mawhir's comment,
"that it would not be for the best interests for all of
you to have the Union here," made the point quite
clear, and in the process conveyed the threat of plant
closure in the event of unionization.
As the Supreme Court noted in N.LR.B. v. Gissel
Packing Co., Inc.," analysis of such employer
I There was no specific testimony about the wage rates of any of the other
Mayville drivers. However, we deem this sufficient to establish that the
mnount of the announced wage increase was substantially more than
Mewhir's 5-percent figure.
GOeneral Counsel excepts to the Administrative Law Judge's recommend-
ed dismissal of the allegation that Respondent violated the Act by allowing
expression "must take into acount the economic
dependence of the employees on their employers, and
the necessary tendency of the former, because of that
relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more
disinterested ear." That the genuine possibility of a
discontinuance of railroad service existed (see infra)
does not preclude the finding of a violation here, since
we are not dealing here with a prediction based on
economics or matters beyond Respondent's control,
but an implied threat that Respondent would cease its
efforts to retain the spur track to Mayville should the
Union be selected, with the result that Respondent
would have to leave Mayville. There was no reason for
Respondent to raise the problem of the railroad spur
at this time except to combat the organizational
efforts, since there was no legitimate connection
between the union activities and the railroad spur line.
We find, therefore, that Respondent was threatening
to follow a course of action which would disadvantage
employees if they chose the Union, and, accordingly,
we uphold the finding that Mawhir's March 19 speech
was a violation of Section 8(aX 1) of the Act.
A hearing in the representation case was scheduled
for Tuesday, March 23. The preceding day, Floyd
Tarr, an interplant driver who had signed an authori-
zation card on February 19, approached Mawhir with
a notice of the hearing, and told Mawhir that he, Tarr,
had been requested by Ferdie Tanner, the Union's
business agent, and the other drivers to observe the
hearing. Mawhir told Tarr that the latter had work to
do, and that he could not go to the hearing. The next
day, the day of the hearing, Tarr was subpenaed to
appear. Tarr went looking for Mawhir, since the latter
had told Tarr just the day before that he was not to
attend the hearing. Tarr was unable to find Mawhir,
so he then looked for someone else to give him
permission to leave work to honor the subpena. When
he spoke with Mawhir's private secretary, she told
Tarr that she had no authority to accept the subpena.
Mawhir testified that his secretary called him at a
motel that day to tell him that Tanner, the union
business agent, had called to say that he had a subpena
for Tarr. Mawhir's secretary informed him that she
told Union Business Agent Tanner that she had no
authority to accept a subpena. After learning that Tarr
had been subpenaed, and that at least one request had
been made for a company official to honor the
subpena, Mawhir still made no attempt to correct
employees to purchase damaged furniture at reduced rates. Respondent had
established such a policy, however, at least a year prior to the events at issue
in this case. Accordingly. we adopt the Administrative Law Judge's
recommendation and shall dismiss this allegation.
"395 U.s. 575, 617(1969).
555
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tarr's impression that he was forbidden to go to the
hearing. 2 Tarr worked the rest of the day, while
Mawhir attended the hearing.
The Administrative Law Judge held that Respon-
dent violated Section 8(a)(1) of the Act by Mawhir's
refusal to permit Tarr to attend the Board hearing on
the representation petition. We agree. An employer's
obligation, with respect to subpenaed employee wit-
nesses, is one of noninterference, nonrestraint, and
noncoercion as to such employees' rights and obliga-
tions to attend scheduled hearings as subpenaed
witnesses, and one of nonreprisal to such employees
because they are subpenaed witnesses. Walt Disney
World Co., 216 NLRB 836, 837 (1975). Mawhir knew
that he himself was unavailable to grant permission to
Tarr to leave work to honor the subpena, and that his
secretary was saying that she did not have the
authority to honor the subpena. With Mawhir's earlier
instructions to Tarr still standing uncontradicted,
these actions interfered with Tarr's right to attend the
hearing, in violation of Section 8(a)(1) of the Act.'
The Administrative Law Judge further finds that
Respondent violated Section 8(a)(l) by "its action in
reducing the working hours of Tarr after he had
testified at the Board's representation hearing."" We
do not adopt this finding since it is not factually
supported. The Administrative Law Judge states,
"Tarr normally worked 57 to 60 hours a week, but
after the subpoena incident, his hours dropped to
approximately 29 to 33 hours per week." Tarr
testified, however, that some time prior to the hearing
the hours of the interplant drivers were cut slightly.
Additionally, Respondent's records, according to Ma-
whir's uncontradicted testimony, showed that Tarr
received approximately the same number of hours as
the other interplant driver, Gene Shepard, during the
period in question." We therefore do not adopt the
Administrative Law Judge's finding of a violation in
this regard.
As discussed in detail, infra, on March 30, the first
of the six discharges alleged to be unlawful occurred,'
when driver Clifford Hammond was terminated. The
next day, on March 31, Floyd Tarr was suspended for
3 days. On April 1, David Olson was also discharged.
Shortly after Donald Mawhir informed Olson of his
discharge, driver Cecil Miller went into Mawhir's
office to turn in his bills. Miller, who had signed an
authorization card on February 19, was not known at
" It is not clear whether Mawhir also knew that Tarr had asked Mawhir's
secretary to honor the subpena.
" This was not remedied by Respondent's later statement at the hearing,
when asked why Tarr had not been permitted to attend, that it was willing to
have the hearing continued until Tarr was present.
" This obviously refers to Tarr's request to testify at the hearing, rather than
his actual testimony, since Tarr did not attend the hearing.
" Tarr admittedly was offered the opportunity to work on Saturdays, and
declined. Gene Shepard, the other interplant driver, was therefore given 5
this time as a union adherent. Mawhir told Miller that
Miller's job was secure, and that he did not have to
worry as long as Ethan Allen stayed in Mayville.
Mawhir also told Miller that business was picking up,
and asked Miller if he was satisfied with his job.
Finally, Mawhir asked if anyone had been bothering
Miller, to which Miller replied no, and that it would
not do them any good if they did because he had a
mind of his own. The Administrative Law Judge
found that Mawhir's inquiry of Miller as to whether
anyone was bothering him and if he were satisfied with
his job was related to and concerned Miller's union
activity and thus violated Section 8(a)(l) of the Act.
We agree, since no other reason suggests itself for
Mawhir's inquiry."
On May 27, the day before the election, Mawhir
and Wood had a conversation during which Mawhir
told Wood how good the Company had been to
employees, and different things that the Company had
done for them. Mawhit admitted that it looked bad
that people had been laid off, and that it looked like
the Company was getting rid of people because of the
Union. He said that it was not so, and that people
were being laid off because of the railroad. Wood told
him that it looked bad because they did not start at the
bottom of the seniority list; Mawhir answered that
there was no seniority list at Ethan Allen at that time.
Wood testified that Mawhir went on and "more or less
insinuated that he would like me to vote against the
union, which is just normal, I guess. And then he said
that if we voted the union down that things would go
on as they did before. And I asked him then, I said,
'Well, what if we vote the union in?' He said 'Well, I
can't honestly tell you what would happen.' Then he
said, 'I don't know, myself."' The Administrative Law
Judge found that there was no threat of reprisal, but
that it was an illegal promise of benefit when Mawhir
said that, if the Union were voted out, conditions
would remain the same as they had been. He therefore
found a violation of Section 8(a)(1) of the Act. While
we agree that the statement violates Section 8(a)(1) of
the Act, we disagree with the Administrative Law
Judge's characterization of this statement as a promise
of benefit. Instead, we find that Mawhir's statement
was a thinly veiled threat that employees would risk
reprisals or detrimental changes if they selected the
Union. This conversation occurred shortly after the
discharge of six union adherents, and the occurrence
more hours a week of Saturday time. Taking this fact into consideration, Tarr
is shown to have been given more Monday-through-Friday hours than
Shepard on 4 of the weeks in question. Two of the remaining weeks, Tarr lost
hours during an unlawful suspension. Thus. there was only I week when the
other interplant driver received more hours than Tarr.
'" Although Respondent's action was couched in terms of a reduction in the
work force, the employees were discharged, rather than laid off.
"The Administrative Law Judge mistakenly found that Mawhir asked
Miller if he had signed a union card.
556
MID-EAST CONSOLIDATION WAREHOUSE
of a number of 8(a)(1) violations. The clear implica-
tion of Mawhir's statement is that if the Union were
voted down, things would go on as they did before the
union campaign, meaning without discharges or other
reprisals, while if the Union were voted in, Mawhir
could not tell what would happen; i.e., whether the
discharges and reprisals or other changes would
continue to occur.
The 8(a)(3) Violations
On March 31, 1977, 9 days after the representation
hearing, Floyd Tarr had an accident at the Mayville
loading dock. While backing his truck out, Tarr hit
the trailer parked next to him, knocking a door off of
his own truck. Tarr was suspended for 2-Y days by
Donald Mawhir. The complaint alleged that the
suspension was discriminatorily motivated, but the
Administrative Law Judge found no violation. We
disagree, and find that the General Counsel has shown
by a preponderance of the evidence that Tarr was
suspended because of his union activities.
Respondent argues that it suspended Tarr because
he had also been in four recent accidents previous to
the incident in question. There were, however, other
drivers who had also had multiple accidents and/or
accidents which were far more serious than Tarr's.
None of these drivers was disciplined. Indeed, one
driver, Clifford Hammond, testified without contra-
diction that he had received driving awards during the
same time period that he had been involved in several
accidents. While it is true that Tarr's accidents all
took place within a short period of time, it is also true
that they were all of a relatively minor nature.' The
disparate treatment between known union advocate
-Tarr'9 and the other drivers who had been involved in
accidents, coupled with the fact that the unprecedent-
ed suspension followed closely on the heels of Tarr's
request to attend the representation hearing and in the
middle of a number of discriminatory discharges,
discussed infra, leads us to the conclusion that Tarr's
suspension was in reprisal for his union activities, and
that the accident was seized on to disguise Respon-
dent's real motive in suspending him. Thus, we hold
that Respondent's suspension of Floyd Tarr on March
31, 1977, was in violation of Section 8(a)(3) of the Act.
At the end of March 1977, Respondent began to
terminate drivers, discharging five of its Mayville
" Tarr backed into a post (March 4, 1977), hit the fender of another
company's truck at a construction site (March 14, 1977), tore off a trailer light
cord (March 18, 1977), and tore off an air hose while making a sharp turn in
the Mayville yard (March 28, 1977).
" Mawhir testified that shortly afler the petition was filed he was told by
other drivers that Tarr was "putting pressure on them to support the union,"
and that at the time, he did not know the identity of anyone else who was for
the Union.
'° Respondent argues that it is not appropriate to use the earlier incident to
truck drivers within 5 weeks. Clifford Hammond was
the first to be discharged, on March 30; David Olson
was next, on April 1; Larry Rogers and Eugene
Chelton were both discharged on April 11; and Cecil
Miller was the last to be discharged, on May 2. Each
driver was told that his run had been terminated and
that he therefore had been terminated. The Adminis-
trative Law Judge found that Respondent reduced the
number of its truck runs and the complement of
truckdrivers primarily in an effort to defeat the
Union's organizational efforts and to eliminate specific
drivers whom Mawhir knew to be supporters of the
Union and to have engaged in prounion activity. He
therefore found that Respondent by such conduct
violated Section 8(a)(3) and (1) of the Act.
Respondent contends that it has established a
business reason for the reduction of routes, i.e., that
Respondent decided to increase tonnage on the May-
ville-Corry line in order to save that particular
railroad line from being discontinued, and shifted
from trucks to trains in order to accomplish that goal.
Even assuming, arguendo, that Respondent has estab-
lished such a business justification for the reduction of
truck routes, we find nevertheless for the following
reasons that Respondent discriminated against union
adherents in its selection of drivers to be terminated,
in violation of Section 8(a)(3) of the Act.
Each of the discharged drivers was a supporter of
the Union. We find furthermore that Respondent
knew that these five drivers were union adherents. In a
small facility such as Mayville, where the entire unit
consists of only 19 employees, a reasonable inference
may be drawn that Respondent would know which
employees were union adherents. This is especially
true in view of the open nature of the discharged
drivers' union activities. Clifford Hammond, the first
driver to be discharged, attended the February 19
Lakeview Hotel drivers' meeting and signed an autho-
rization card. He had been laid off by Respondent 5
years earlier for his union activities at that time.2 0
David Olson and Larry Rogers, discharged respective-
ly on April and II, were the prime movers in the
organizing campaign. The two obtained the authoriza-
tion cards from the Union, organized the Lakeview
Hotel meeting, signed authorization cards at that
meeting on February 19, called and visited drivers'
homes in order to win support for the Union, and
returned the cards to the union headquarters in
demonstrate animus because it was not alleged in the complaint, because a
different union was involved, and because the corporate chain-of-command
had changed since the earlier layoff occurred. Respondent does not deny that
drivers were laid off at that time because of their union activities. The
information about the earlier layoff is background to this case, and is relevant
to an inquiry into Respondent's attitude about unionization. Additionally, as
to Clifford Hammond, the information further indicates that Respondent had
reason to believe that he was a union supporter.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Falconer. Eugene Chelton, who was discharged on
April 11, also signed a card on February 19 at the
Lakeview Hotel meeting. Chelton was also the subject
of the 8(a)(1) interrogation discussed above, at which
he admitted that he had signed a union card. Cecil
Miller, who signed a card on February 19 sometime
after the Lakeview meeting, was also the subject of a
previously discussed 8(a)(1) interrogation, during
which Mawhir assured Miller that his job was secure,
based on Mawhir's inaccurate belief that Miller was
not a union supporter. Miller, too, was an open
supporter of the Union at the time of his discharge.
Respondent admits that the discharges were not
done in accordance with seniority, but argues that it
does not have a seniority system. While it may be true
that Respondent did not have a formal seniority
"system," it is quite clear that seniority considerations
played the major role in the assignment of trucks and
truck routes to the drivers. Even the testimony of
Respondent's own witness, driver Eugene Shepard,
showed that new trucks were assigned on the basis of
seniority. Thus, when four new trucks were delivered
in 1976, they were given to Grant Lindstrom, Larry
Rogers, Chuck Wilson, and Cecil Miller, the four
senior over-the-road drivers. Further, assignment of
truck routes was generally governed by seniority.
Driver David Olson, for example, testified that when
he started driving in 1974, he had a run which he did
not like. He spoke with Donald Mawhir, who told
Olson that when he had a little more seniority that he
would get the run he wanted. Olson remained on that
route for almost a year, and then received a different
route.
Of the five drivers who were discharged, three of the
drivers (Cecil Miller, hired December 6, 1972; Larry
Rogers, hired January 2, 1973; David Olson, hired
March 16, 1974) were among the most senior employ-
ees in the bargaining unit, and would not have been
laid off if the five junior-most employees had been
discharged. Clifford Hammond (hired August 23,
1976) and Eugene Chelton (hired September 18, 1976)
were terminated while two junior employees, Ted
Deck and James Rogers, were retained. It is signifi-
cant that Deck and Rogers signed the antiunion letter
to Respondent's president, whereas none of the five
discharges did so.
Respondent contends that it first selected the route
to be discontinued, and then simply discharged the
driver primarily assigned to that route." Even assum-
" According to Respondent. William Hawkins worked with Donald
Mawhir to select the truck runs that would be terminated, after being directed
by Lawrence Thompson to generate more rail tonnage on the Mayville-Corry
line by eliminating some of the truck routes. Hawkins made the decision that
the drivers would be terminated with the routes.
" William Hawkins, Respondent's director of distribution operations, who
made the decision to terminate the drivers with their routes, gave inconsistent
statements on the issue of whether he knew that he was terminating senior
ing for the sake of argument that the five routes
chosen to be terminated were selected for business
reasons, we do not accept Respondent's explanation
that it was necessary for business purposes to dis-
charge the driver with his primary route. The record
clearly establishes that all of the drivers in the unit had
driven different routes during their employment in
Mayville. Respondent admits that the drivers were
given secondary routes when their schedules allowed
it. In short, there has been no showing that any driver
was so tied to any one route that Respondent would
find it necessary to terminate him when that route was
discontinued. Indeed, in the case of Eugene Chelton, it
was not established that he was even the primary
driver on the terminated route. Furthermore, since
Respondent argues that a minimum of business
disruption was a factor considered in the execution of
this reduction in the work force, it is hard to
understand why Respondent would discharge highly
experienced drivers in favor of, for example, a driver
who had only been employed for 3 weeks. 22 Rather, as
discussed above, it seems clear that, absent discrimina-
tory motives, Respondent would have taken seniority
into account and have retained the senior drivers.
In short, we are left with a situation where
Respondent, after deciding to discharge truckdrivers,
ignored seniority considerations, and selected only
known union adherents. This, coming as it did at the
height of a union organizing campaign, and coupled
with a number of violations of the Act, convinces us
that Respondent discharged Clifford Hammond, Da-
vid Olson, Larry Rogers, Eugene Chelton, and Cecil
Miller because of their union activities, in violation of
Section 8(a)(3) and (1) of the Act.
On May 12, 1977, Floyd Tarr was discharged when
he inadvertently pulled the air hoses and an electric
cord from his tractor while unhooking the tractor in
the Mayville yard. The Administrative Law Judge
found Tarr's discharge to be a violation of Section
8(a)(3) of the Act. We agree that Tarr's discharge was
in violation of the Act for the following reasons.
Tarr, who had signed an authorization card, and
requested to serve as a union observer at the represen-
tation case hearing, was well known to Respondent as
a union activist. As noted in the discussion of
Respondent's unlawful suspension of Tarr, Division
Manager Mawhir stated that he knew of Tarr's union
activities shortly after the petition was filed, and
drivers. In an affidavit given to this Agency on May 26, 1977, Hawkins stated
that he was aware that some senior drivers were being laid off, and that a
truckdriver hired in February 1977 was not laid offand was still employed. In
his testimony before Administrative Law Judge Peterson in September 1977,
Hawkins denied that he knew at the time of the decision to lay off drivers that
senior drivers were being laid off. This change of testimony further casts
doubt upon Respondent's version of how the decision to lay off these
particular five drivers was made.
558
MID-EAST CONSOLIDATION WAREHOUSE
before Mawhir knew of any of the other union
activists.
While it is undisputed that Mawhir told Tarr on
March 31, 1977, at the time of his previous accident,
that Tarr would be discharged if he had another
accident, it must be considered that the warning to
Tarr about the consequences of another accident was
given on the occasion of his unlawful suspension, and
was therefore tainted. Additionally, the minor mishap
with the hoses on May 12 barely meets the definition
of an accident. Tarr, as an interplant driver, was
admittedly required to hook and unhook tractors
more often than the over-the-road drivers. The inci-
dent with the hoses seems to be more of a nuisance
than an accident, and would not ordinarily warrant a
discharge absent discriminatory motivation. This im-
pression is strengthened by the difference between
Tarr's treatment and that accorded other drivers who
had accidents. No other driver was ever suspended or
discharged for an accident, although such accidents
had taken place regularly. In fact, it is undisputed that
Dale Babcock, another Mayville driver, had, on
February 10, 1977, run over two parked cars in the
very same yard where the Tarr accident occurred,
occasioning an insurance claim, and yet was not
disciplined by Respondent. Thus, the minor nature of
the May 12 incident, Respondent's disparate treat-
ment between drivers who had accidents, and Respon-
dent's knowledge and prior attempts to thwart Tarr's
union activities (i.e., the refusal to permit Tarr to
honor the representation hearing subpoena and the
March 31, 1977, suspension) lead us to the conclusion
that the air hose incident was a pretext for getting rid
of Tarr. We therefore hold that Tarr's discharge was
in violation of Section 8(aX3) and (1) of the Act.
II. THE ELECTION, CHALLENGES AND OBJECTIONS
TO THE ELECTION, AND RESPONDENT'S
REFUSAL TO BARGAIN
An election was held on May 28, 1977, among
Respondent's employees in the appropriate bargaining
unit." A tally of ballots served on the parties on May
28, 1977, showed that four votes were cast for, and
nine against, the Union, with six challenged ballots.
The six challenged ballots were those of the six
discriminatees. The Union objected to the conduct of
the election on the basis of the same conduct alleged in
the complaint." The consolidated hearing in this case
was held to resolve the challenged ballots, objections
" All truckdrivers including the mechanic-driver and the dispatch-driver
employed by the Employer, but excluding all office clerical employees, guards,
professional employees, and supervisors as defined in the Act.
" As the Regional Director stated in his Report on Objections and
Challenges, the alleged conduct which occurred before the filing of the
petition was not relevant to the conduct of the election.
to the election, and the unfair labor practices alleged
in the complaint.
The Administrative Law Judge ordered that the six
challenged ballots of the discriminatees be opened and
counted, and that if, after these ballots were counted,
the Union did not have a majority of the valid ballots
cast, the election should be set aside and another
election conducted. We agree that if the revised tally
of ballots shows that a majority of the votes have been
cast for the Union a certification of representative
should issue. However, if the revised tally shows that a
majority of the votes have not been cast for the Union,
we find that Respondent's unlawful conduct precludes
the likelihood of conducting a fair second election, and
that since the Union represented a card majority of
Respondent's employees as of February 19, 1977, the
issuance of a bargaining order is warranted as part of
the remedy for the unfair labor practices committed
by Respondent. N.L.R.. v. Gissel Packing Co., Inc.,
395 U.S. 575 (1969).
Of the 19 drivers in the unit, 11 signed authoriza-
tion cards on February 19, 1977. (Two additional
cards were signed on March 5.) We therefore find
that, as of February 19, a majority of the employees in
the unit had designated the Union as their representa-
tive for the purpose of collective bargaining. Respon-
dent at the hearing raised questions with respect to the
validity of several cards, principally on the ground
that they were solicited to obtain an election. We have
carefully considered the testimony as to each card and
have concluded that each is valid. While an election
was mentioned in connection with the solicitation of a
number of the cards, none of them was solicited on the
basis that it would be used solely or only for an
election. Only 2 of the 11 cards, those of Eugene
Chelton and Richard Lloyd, raise any other issue.
A. Eugene Chelton
Eugene Chelton's authorization card is undated,
raising a question as to when it was signed." Chelton
testified that he signed the card at the Lakeview
meeting; although Chelton could only remember that
the meeting took place in February 1977, it is
undisputed that the exact date was February 19, 1977.
Larry Rogers, one of the card solicitors, also testified
that Chelton signed the card on February 19, 1977, at
the Lakeview meeting. We find, therefore, that Eugene
Chelton signed his card on February 19, 1977.?6
" The absence of the date on an authorization card does not affect its
validity. Skyline Transport. 228 NLRB 352, 354(1977).
2" In any event, the card was submitted with the petition to the Board. Thus,
it must have been signed on or before February 23, 1977.
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Richard Lloyd
Richard Lloyd, a driver-mechanic in Mayville,
signed an authorization card shortly after the Febru-
ary 19 Lakeview meeting. (He later signed the
antiunion petition which was sent to Respondent's
president.) Lloyd signed the card at the Mayville
facility after being approached by Larry Rogers and
David Olson. Although the card is dated February 19,
1977, and both Rogers and Olson testified that Lloyd
signed on that date, Lloyd testified that he signed the
card on February 20. Lloyd also testified that, prior to
signing the card, "I was told that everybody did and
they wanted me to. And I said-I said 'Dave, I don't
go along with it, and I've been independent too long.'
He said that things were changing. I said 'Well, if that
is what everybody wants, I will go along with them."'
Lloyd stated that when he found out a day or two later
that everyone had not signed cards he told Olson that
he "didn't want any part of it," but was told that it
was "too late." Lloyd did not ask for his card back,
but testified that he made a phone call to a place he
could not identify, apparently to disclaim the card. He
said that he was told to call the "Labor Board," but
that he never called.
Without more, the alleged statement that "every-
body" had signed seems like little more than salesman-
ship or mild puffery. This situation can be distin-
guished from the case where an employee is told
specifically that he or she is the only one left in the
unit who has not signed a card. Furthermore, Lloyd's
testimony about what he did to disclaim his card is
muddled and unclear. Thus, we find that the objective
facts, as evidenced by events contemporaneous with
the signing, do not show that the alleged misrepresen-
tations made to Lloyd to the effect that "everybody"
had signed was the decisive factor causing him to sign.
Marie Phillips, Inc.., 178 NLRB 340, 341 (1969).
Richard Lloyd's card, which we find to be dated
February 19, 1977, is therefore valid and has been
counted in determining the Union's majority status.
Thus, we find that as of February 19, 1977, a
majority of Respondent's employees in the appropriate
unit had designated Local 649 as their representative
for the purpose of collective bargaining."
In N.L.R.B. v. Gissel Packing Co., supra, the
Supreme Court approved the use of authorization
cards as an indication of employee sentiment, and
further approved reliance on such cards as a basis for a
bargaining order where there is "a showing that at one
point the union had a majority," and the employer has
" We note that even if the Lloyd card were not counted, the Union would
still have had a majority on February 19. If Chelton's undated card were also
not counted until the Union submitted it to the Board in support of its
representation petition, the only effect would be to postpone the date the
Union achieved majority status to February 23.
engaged in unfair labor practices which have "a
tendency to undermine majority strength and impede
the election processes." (395 U.S. at 614.)
In the instant case, Respondent's unlawful conduct
began even before the union campaign, and continued
up until the day before the election. In December
1976, Manager Donald Mawhir, on two separate
occasions, threatened drivers that the Company would
retaliate against employees if they supported a union.
On February 19, 1977, Mawhir, in violation of Section
8(a)(1), told drivers complaining about their salary
that they were lucky to have jobs, and that if they did
not like what they were receiving they should get out.
After the petition was filed on February 23, 1977,
Respondent threatened and coerced employees to drop
their support for the Union. Eugene Chelton was
interrogated on February 26; on March 19, Respon-
dent unlawfully threatened plant closure and granted
a wage increase; Floyd Tarr, although subpenaed, was
prevented from attending a Board hearing on March
23; Cecil Miller was interrogated about his union
activities on April 1; finally, on the day before the
election, Donald Mawhir threatened Raymond Wood
that employees would risk discharges or penalties for
selecting the Union. Further, Respondent suspended
Floyd Tarr on March 31 in reprisal for his union
activities, and proceeded in the next 6 weeks to
discriminatorily discharge Clifford Hammond, David
Olson, Larry Rogers, Eugene Chelton, Cecil Miller,
and Floyd Tarr, all six being prounion drivers. Thus,
Respondent had, by May 12, 1977, discharged 6 of the
13 people who actively sought the Union, threatened
plant closure, granted an unlawful wage increase, and
committed several other unlawful acts in its effort to
defeat the Union. The discharge of employees because
of union activity is one of the most flagrant means by
which an employer can hope to dissuade employees
from selecting a bargaining representative because no
event can have more crippling consequences to the
exercise of Section 7 rights than the loss of work.
Further, Respondent's unlawful granting of benefits
affected all unit employees, as did its threat of plant
closure." By committing these unfair labor practices,
Respondent fatally impeded the election process.
Thus, the issuance of a bargaining order is warranted.
No exception has been taken to the Administrative
Law Judge's finding that a request for recognition was
made on February 21, 1977, by Ferdie Tanner, a
business agent of the Union, to Donald Mawhir.
Mawhir refused the request, and the petition was filed
on February 23, 1977.29 Although the Union achieved
2 GeneralStencils 195 NLRB 1109 (1972).
' A demand and refusal to bargain are not necessary where, as in this case,
a bargaining order is required to remedy the effects of Respondent's unfair
560
MID-EAST CONSOLIDATION WAREHOUSE
majority status on February 19, 1977, the demand for
recognition was not made until February 21. Thus, we
find that Respondent violated Section 8(a)(5) of the
Act by refusing to recognize and bargain with the
Union as the majority representative of its employees
while at the same time engaging in conduct which
undermined the Union's majority status and prevented
the holding of a fair election. Since all of Respondent's
unfair labor practices prior to February 21 are
otherwise individually remedied by our Order, we
conclude that Respondent should be required to
recognize and bargain, upon request, with the Union
as of the date of the Union's demand; i.e. February 21.
Trading Port, Inc., 219 NLRB 298, 301 (1975).
Il. THE REMEDY
Having found that Respondent has engaged and
continues to engage in certain unfair labor practices,
we shall issue an order requiring Respondent to cease
and desist therefrom 3 ° and take certain affirmative
actions designed to effectuate the policies of the Act,
including bargaining with the Union as the duly
designated representative of its employees in the
following described appropriate unit, effective Febru-
ary 21, 1977:
All truckdrivers including the mechanic-driver
and the dispatch-driver employed by the Employ-
er, but excluding all office clerical employees,
guards, professional employees, and supervisors
as defined in the Act.
Respondent also will be ordered to offer Clifford
Hammond, David Olson, Larry Rogers, Eugene Chel-
ton, Cecil Miller, and Floyd Tarr3' their former jobs
or, if those jobs no longer exist, to equivalent positions
of employment, without prejudice to their seniority or
other rights and privileges previously enjoyed, and to
make them whole for any losses they may have
suffered as a result of the discrimination against them
in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest computed in the
manner set forth in Florida Steel Corporation, 231
NLRB 651 (1977).32
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
labor practices. Beslcy Energy. Inc.. d/b/oa Peaker Run Coaol Company, Ohio
Division #1, 228 NLRB 93 (1977). Therefore, even in the absence of a
demand in this case we would issue a bargaining order commencing with
Respondent's unfair labor practices or at the time it achieved majority status if
that occurred later.
' We find Respondent's unlawful conduct demonstrates a proclivity to
violate the Act and that Respondent has engaged in such egregious and
widespread misconduct so as to demonstrate a general disregard for its
Relations Board hereby orders that the Respondent,
Mid-East Consolidation Warehouse, A Division of
Ethan Allen, Inc., Mayville, New York, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening its employees with loss of employ-
ment or with other reprisals if they engage in union
activities.
(b) Questioning employees concerning their or other
employees' union membership, activities, sympathies,
or desires.
(c) Granting wage and expense increases to its
employees for the purpose of influencing their selec-
tion of a labor organization as their bargaining
representative; provided, however, that nothing herein
shall be construed as requiring Respondent to vary or
abandon any benefits heretofore established.
(d) Threatening employees with plant closure if they
continue their union activities.
(e) Refusing to allow employees to attend Board
proceedings.
(f) Threatening that employees would risk dis-
charges or penalties for selection of Local 649, or any
other labor organization, or for engaging in protected
concerted activities.
(g) Suspending employees because of their union
activities.
(h) Discouraging membership in the Union by
discharging employees or otherwise discriminating in
any manner in respect to their tenure of employment
for engaging in protected concerted activity or union
activity.
(i) Refusing to bargain with the Union as the duly
designated representative of a majority of employees in
the following unit found appropriate under Section
9(b) of the Act:
All truckdrivers including the mechanic-driver
and the dispatch-driver employed by the Employ-
er, but excluding all office clerical employees,
guards, professional employees, and supervisors
as defined in the Act.
(j) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Clifford Hammond, David Olson, Larry
Rogers, Eugene Chelton, Cecil Miller, and Floyd Tarr
employees' fundamental statutory rights. We find it necessary, therefore, to
order Respondent to cease and desist from "in any other manner" interfering
with, restraining, or coercing employees in the exercise of their protected
Section 7 rights. Hirkmott Foods Inc., 242 NLRB 1357 (1979).
" Tarr shall also be made whole for the period of his unlawful suspension.
" See, generally, Isis Plumbing A Heating Co.. 138 NLRB 716 (1962).
General Counsel's request that the rate of interest on backpay should be set at
9 percent per annum is hereby rejected.
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or any other rights or privileges previously enjoyed.
In addition, Respondent shall make whole all of these
employees for any losses of pay they may have
suffered as a result of the discrimination against them,
as set forth in the section of this Decision entitled
"The Remedy."
(b) Recognize and, upon request, bargain collective-
ly with the Union as the exclusive representative of the
employees in the above-described appropriate unit
and, if an understanding is reached, embody such
agreement in a written, signed contract.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its offices and places of business in
Falconer and Mayville, New York, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 3, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the challenges to the
ballots of Clifford Hammond, David Olson, Larry
Rogers, Eugene Chelton, Cecil Miller, and Floyd Tarr
be overruled, that their ballots be opened and counted,
and that a revised tally of ballots issue in Case 3-RC-
6873.
IT IS FURTHER ORDERED that should the revised
tally of ballots show that a majority of votes have been
cast for the Union the Regional Director for Region 3
shall issue a certification of representative.
IT IS FURTHER ORDERED that if the revised tally of
ballots shows that a majority of votes have not been
cast for the Union the election shall be set aside, the
petition in Case 3-RC-6873 dismissed, and all prior
proceedings thereunder vacated.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
loss of employment or with other reprisals if they
engage in union activities.
WE WILL NOT question employees concerning
their or other employees' union membership,
activities, sympathies, or desires.
WE WILL NOT grant wages and expense
increases to our employees for the purpose of
influencing their selection of a labor organization
as their bargaining representative.
WE WILL NOT refuse to allow employees to
attend Board proceedings.
WE WILL NOT threaten that employees would
risk discharges or penalties for selecting Local
649, or any other labor organization.
WE WILL NOT suspend employees because of
their union activities.
WE WILL NOT discourage membership in the
Union by discharging employees or otherwise
discriminating in any manner in respect to their
tenure of employment for engaging in protected
concerted activity or union activity.
WE WILL NOT refuse to bargain collectively
with Truck Drivers Local Union No. 649, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
collective-bargaining representative of our em-
ployees in the unit. The appropriate unit is:
All truckdrivers including the mechanic-driver
and the dispatch-driver, but excluding all office
clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them in Section 7 of the
Act.
WE WILL offer full and immediate reinstate-
ment to Clifford Hammond, David Olson, Larry
Rogers, Eugene Chelton, Cecil Miller, and Floyd
Tarr to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
of employment, without prejudice to seniority or
any other rights or privileges previously enjoyed,
and WE WILL make them whole for any losses
they may have suffered as a result of the
discrimination against them, with interest.
WE WILL, upon request, bargain collectively
with the above-named Union, as the exclusive
562
MID-EAST CONSOLIDATION WAREHOUSE
representative of all our employees in the unit
described above, and, if an agreement is reached,
we will embody it in a signed contract.
MID-EAST CONSOLIDATION WAREHOUSE,
A DIVISION OF ETHAN ALLEN, INC.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: The
hearing in this consolidated proceeding was held on Septem-
ber 6-9, in Jamestown, New York, based on the complaint
issued by the Regional Director for Region 3, on May 31,
1977, and the Report on Objections issued by the Regional
Director on June 28, 1977; the complaint was amended by
the Acting Regional Director on July I and the answer of
the Respondent to the amended complaint was filed on July
11. The complaint, as amended, in substance alleged that
Respondent, Mid-East Consolidation Warehouse, A Divi-
sion of Ethan Allen, Inc, on various dates, through a
supervisor, Donald Mawhir, the manager of Respondent,
had interfered with, restrained, and coerced its employees in
that he had on or about February 23 and 26 and April 1,
interrogated Respondent's employees as to their own or
other employees' union activities, sympathies, or desires;
threatened to fire its employees if they joined or assisted a
labor organization in December 1976 and late February and
March 19, 1977; threatened to fire an employee if he
attended a hearing, scheduled in Case 3-RC-5873, on
March 21, 1977; and granted raises in wages and expense
money in order to persuade its employees to abandon the
Union, on March 19. In addition, the complaint alleged that
Respondent, by Mawhir, on March 31, at its Mayville, New
York, plant, suspended employee Floyd Tarr for 3 days,
and, on the dates and places set forth below, discharged the
named employees and thereafter failed and refused to recall
them: Clifford Hammond, March 30, 1977, Mayville; David
Olson, April 1, 1977, Mayville; Larry W. Rogers, April 11,
1977, Mayville; Eugene R. Chelton, April 11, 1977, May-
ville; Cecil P. Miller, May 2, 1977, Falconer; and Floyd W.
Tarr, May 12, 1977, Mayville.
The complaint alleges that Respondent suspended and
terminated and has thereafter failed and refused to recall the
foregoing employees because they had engaged in union or
protected concerted activities for the purposes of collective
bargaining or mutual aid or protection. The complaint
alleges that by the foregoing conduct, Respondent had
engaged in activities violative of Section 8(a)(1) and (3) of
the National Labor Relations Act. In its answer, dated June
3, Respondent admitted certain allegations, but denied that
I The motions of counsel for the General Counsel and counsel for
Respondent to correct the transcript are hereby granted, except in one respect
opposed by counsel for the General Counsel relating to p. 436, 1. 10 to delete
the word "laughed."
On October I I received from counsel for the Respondent a motion that I
reopen the hearing to accept two (2) previously unavailable pieces of
evidence, that are both directly relevant to Respondent's defense, concerning
the immediacy and immenence of termination of rail service to the Mayville
Warehouse." These were a September 14 letter from the Commissioner of the
New York State Department of Transportation to Respondent's vice
it had engaged in any unfair labor practices. The complaint
was amended on July 1; Respondent, on July I 11, denied the
allegations contained in the amended complaint.
Upon the entire record in this case' and after careful
consideration of the briefs filed with me, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
For some years, not disclosed by the record, Respondent
has been in the business of operating a furniture factory and
consolidation warehouse in Mayville, New York, under a
number of names. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and comes within the
jurisdictional standards of the Board. It further admits, and
I find, that Truck Drivers Local Union No. 649, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, herein called the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The drivers at the Mayville operation have never been
organized, as is true of all the truckdrivers in the distribution
operation. Prior to the present organizational campaign, the
drivers attempted to organize in 1972. That effort, so it
appears, was met by the immediate reaction from Respon-
dent, which placed four drivers out of driving work and it
was only when the drivers recanted and personally handed
their authorization cards to Mawhir, that the layoffs were
ended and the drivers returned to work. However, rumors of
union persisted over the years and, according to the brief of
counsel for the General Counsel, it was against this
background that Mawhir, in December 1976, allegedly told
Rogers, a driver, that if the drivers continued to "mess
around" with the Union they would all be out of a job. Later
that month, or perhaps early in January, when told by
Raymond Wood that there were rumors concerning another
organizational effort, Mawhir made some reference to a
prior experience that the drivers had suffered while, at the
same time, advising Wood that he wanted Wood to talk the
drivers out of the Union.
While it appears that the so-called threats of Mawhir did
not have the intended effect, the following February, Rogers,
together with David Olson, a fellow driver, procured
authorization cards from the union hall the day before a
meeting of the drivers was to be held in Mayville. At that
president, and October 4 affidavit of Mawhir. On October IS, I received
counsel for the General Counsel's opposition, in which he stated that the
proffered evidence was irrelevant since all of the personnel actions alleged
took place prior to May 28 and the proffered documents relate to events
which occurred after the close of the hearing. In addition, he states the
attempt to introduce this evidence by motion deprives him of the opportunity
to cross-examine witnesses or conduct voir dire examination on the proffered
documents.
The documents are admitted.
563
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, conducted by Mawhir, the matter of money as
usual, came up, but the expectations of the drivers and
Respondent's "possibilities" were considerably at variance.
Rogers had earlier suggested to Mawhir that a 50-cent-per-
hour increase would be appropriate, but at the meeting,
Mawhir mentioned that only a 5 percent increase was
possible. When some of the drivers complained that they had
not received previously promised merit increases, and
another driver mentioned a 50-cent-per-hour increase figure,
Mawhir responded that they were lucky to have jobs and if
they did not like what they were receiving, they should get
out.
Raymond Wood, who was employed by Respondent as a
truckdriver for some 7 years, off and on, testified that he
signed a union card and that Deck also signed a card at that
time. Wood related that he had a conversation with Mawhir
the day before the election in front of the garage at the plant
in Mayville. According to Wood, Mawhir was "telling me
how good the company had been to us, and different things
that the company had done." He further related that
Mawhir said that employees had gotten laid off because of
"the railroad business," and further stated that "it just
happened that the railroad business came in about the same
time that the union business did." He went on to state that
Mawhir stated it "looked bad," and that it appeared that the
Respondent was "getting rid of the people because of the
union." According to Wood, Mawhir stated that it was not
because of the railroad. He further related that "it just
happened that the railroad business came in about the same
time that the union business did," and stated that "he knew
it looked bad," and that it appeared that Respondent was
"getting rid of the people because of the union." He further
testified that this was not the case and stated that it was
because of the railroad. Wood further related that he told
Mawhir that the reason that it "looked bad to me" was
because of the manner in which Respondent had gotten rid
of the employees, inasmuch as Respondent had not started
at the bottom of what he considered the seniority list and
worked up. According to Wood, Mawhir responded that
Respondent did not have a seniority list, and "insinuated"
that he would like Wood to vote against the Union and
further said that if the employees voted the Union down,
matters would go on as they had in the past. Thereupon,
Wood asked Mawhir what would occur if the employees
voted the Union in, to which Mawhir replied he could not
honestly tell him what would happen and that he did not
know himself. Wood further related that Mawhir said that
they had gotten along for years without a union and that he
did not think they needed one as they had always been able
to settle their differences without the intervention of a union.
About the end of December or early January Wood went
into Mawhir's office and the latter asked him how the other
drivers were feeling, whereupon Wood brought up the fact
that it had been some time since anyone had received a raise,
and that the drivers felt that it was about time that they did
obtain a raise. Wood also brought up the fact that there was
a rumor about the Union again. Mawhir then told him that
he "better try to talk these guys out of it. The last time this
happened about the union, you know, the company would
not put up with that." According to Wood, this organiza-
tional effort happened about 5 years previously. Wood
testified that the employees sought to join the Union, but
Respondent immediately laid off four drivers for about a
week and then permitted them to come to work in the plant
but not driving the trucks. The drivers spoke to Mawhir at
his home and, so Wood testified, they "finally came up with
the idea that the only way to get these guys back to work
was to agree that we would not join this union." They still
had the signed authorization cards which they had not
turned in to the Union. Wood testified that the "agreement
was that we would go in and turn in those cards to Don and
agree not to join this union, and I believe the four drivers
would get their jobs back. This is what we did. And they did
get their jobs back." It is Wood's testimony that they did
turn the authorization cards in to Mawhir.
On cross-examination Wood testified that on March 5
when he signed his union card at union headquarters in
Falconer, there was a meeting of the drivers with an official
of the Union during which they discussed what the advan-
tages might be of being represented by a union and further
discussed the possibility that there would have to be an
election and how many votes were needed to bring the
Union in.
Rose Paris testified that on April 29, she and Cecil Miller
went to Mayville in her pickup in order to turn in Miller's
bills and get his bills for the following week. She related that
the pickup was covered with union stickers. They parked the
truck near the drivers' door while Miller went into the
building and turned in his bills. Two men, Ed Kahle and
Dick Lloyd, were there and, according to Paris, "stood
beside the pickup and looked at it, walked around to an
angle, to the back of the pickup, and they were talking at the
side." Neither of them said anything to Paris nor did Paris
speak to them.
B. Suspension and Termination of Tarr
Floyd Tarr, who worked for Respondent both as an over-
the-road driver and interplant driver from July 25, 1975, and
through May 13, 1977, described what occurred at a meeting
of drivers called by Mawhir on February 19. The possibility
of a 50-cent raise was discussed, but Mawhir stated that if
anyone wanted the big money they would have to go
elsewhere to get it. Thereafter, the drivers met at a hotel and
signed union cards. On March 19, Mawhir called another
meeting, but Tarr could recall nothing specific that occurred
on that occasion. On March 22, a hearing was held on the
representation petition. The preceding day Tarr approached
Mawhir and told him that he was to appear at the hearing as
the drivers wanted him to act as an observer. Mawhir told
Tarr that he had a full day's work for him on March 22 and
that he better be at work. Tarr testified that he considered
Mawhir's statement as a threat of his being terminated. Tarr
had been subpoenaed to appear at the March 22 hearing.
That day he sought to find Mawhir but was unable to do so.
He made a run to Union City and came back. While at
Union City, he called the Falconer plant and the office
secretary said she had no authority to accept the subpoena.
He returned to Mayville about noon, and at that time Kahle
was dispatching. Kahle said that he knew nothing about
what was going on and that he could not honor the
subpoena. Tarr continued to work the whole day.
564
MID-EAST CONSOLIDA
Tarr normally worked 57 to 60 hours a week, but after the
subpoena incident, his hours dropped to approximately 29 to
33 hours per week. On March 31, Tarr was suspended for 3
days by Respondent. He related that on March 31, he was
told to pull a trailer out of the front dock and as he did so,
the door came off. He reported this to Mawhir who
subsequently suspended him. Tarr related that he was told
he had knocked the door off and had had a series of
accidents. After meeting with Mawhir, Tarr went out to
inspect the door, and he testified that the hinges on the door
were gone as well as the hinges on the trailer. He testified
that the doors were affixed to the trailer by bolts.
Tarr testified he had scraped a Ford truck in a construc-
tion area with the same trailer. At that time, so he testified,
Mawhir told him that the cost of that accident was $168.
However, Mawhir later told him that the cost was 68. At
the time he was suspended, Mawhir told Tarr that the
insurance company could not allow any more accidents,
major or minor, by him. Tarr then testified that approxi-
mately a month previously Mawhir had told him that
Respondent was self-insured. Tarr related that he had never
had what is called a chargeable accident.
Tarr was discharged on May 12. He testified that he had
pulled into the yard and backed the trailer in and unhooked
it but somehow, the hoses got tangled underneath and as a
result the hoses as well as the light cord on the back of the
truck were pulled loose. He went in and talked to Mawhir
who checked the trailer. Tarr testified that Mawhir told him
not to worry about the matter, that he would take care of it.
He then went home and about 2 hours later, Mawhir
telephoned him and said that he was discharged and that he
could come in the next day and pick up his final checks. The
next morning Tarr went into the office and got his checks
and he asked Mawhir whether Mawhir was going to oppose
his obtaining unemployment compensation. Tarr related
that Mawhir replied that he had no position on that matter.
Tarr went on to relate a number of incidents involving
accidents by other employees. However, he had never heard
of any other employee being discharged for having accidents.
On May 16, Tarr filed for unemployment compensation.
On June 30, the department of labor filed its written decision
in which the hearing officer concluded that the accident was
"due to his negligence or inadvertence" but, he felt com-
pelled to conclude that it was brought about by "claimant's
indifference to the vehicle that he was driving and owned by
his employer. Under the circumstances, his loss of employ-
ment was brought about due to an act of misconduct in
connection therewith."
Tarr testified that prior to the hearing his hours of work
"had been cut a small bit, but not like they were cut after the
hearing." On the other hand, Tarr stated that the other
driver "was getting as many hours as he ever did." He
further related that he did not discuss this matter with
Mawhir and that the situation continued until he was
discharged on May 12. His testimony is that the drop in his
hours of work continued from the day after the hearing until
the day he was terminated. He testified that the employees
were working 60 hours, 7 days a week, and that Shepard was
"getting close to 60 hours a week," whereas he was getting
between 29 and 35 hours. He related that he did not ask
anyone about this matter.
.TION WAREHOUSE 565
Tarr was asked whether, at the time he was given the 3-
day suspension, Mawhir asked if he was sick or anything and
further pointed out that he was having "a rash of accidents."
Asked whether he had any reason not to work on Saturday,
he replied that most of the time he had put in close to 60
hours and was the senior employee. He further stated that he
liked to work 5 days a week, Monday through Friday, and
so had advised Mawhir.
Shortly after the meeting with Mawhir, the drivers
adjourned to the Lakeview Hotel, signed union authoriza-
tion cards and returned them to Rogers and Olson. Some-
what later, Rogers and Olson obtained the signature of Dick
Lloyd on a card and the signature of Cecil Miller at his
home. The cards were then returned to the Union's hall in
Falconer and filed in support of the present petition.
Somewhat later, two other drivers, Raymond Wood and Ted
Deck, signed cards at the union hall in Falconer and gave
the cards to the business agent. Out of 19 persons in the
appropriate unit, 1I had signed union cards on February 10,
and 2 more signed within 2 weeks, making a total of 13
cards, which constituted a substantial majority of the drivers
in the appropriate unit.
The following Monday, the business agent of the Union,
Ferdie Tanner, accompanied by another business agent, saw
Mawhir and told him that they had signed up an over-
whelming majority of the drivers and requested recognition.
Mawhir declined their request and, in consequence, the
petition was filed. That Saturday, Mawhir spoke to Eugene
Chelton, a driver, who appeared at the office of Respondent
in Mayville. Mawhir questioned Chelton about his own
union activities, and also about the activities of the other
drivers. Chelton admitted that he supported the Union, but
declined to implicate any other employees. Mawhir attrib-
uted the campaign to a couple of troublemakers, but
mentioned no names.
As previously related, there was a meeting on March 5 at
the union hall in Falconer, at which two additional cards
were obtained from drivers. At about the same time, three
employees, Ed Kahle, Gene Shepard, and Charles Wilson,
circulated a counterpetition among certain drivers. This
petition was addressed to Clint Walker, a high official of
Respondent at headquarters in Danbury, Connecticut.
When Clifford Hammond, a driver, was approached togeth-
er with his brother Donald, to sign this petition, it had been
signed by Kahle, Wilson, Shepard, Dale Babcock and Ted
Deck. Babcock and Deck were defectors from the union
cause. According to counsel for the General Counsel, it is
even more significant that Clifford Hammond did not sign it
and that Dick Lloyd and James Rogers, the latter being the
least senior employee, did sign it. Shepard then sent the
petition to Walker, the president of Ethan Allan.
Another meeting of drivers was held by Mawhir at
Mayville on March 19. At this meeting he announced a 35-
cent-per-hour across-the-board increase for the drivers,
which was approximately twice the increase Mawhir had a
month earlier told the drivers was "possible." At this
meeting Mawhir made what counsel for the General Counsel
states was "an emotional and thinly veiled threat that the
plant would be closed if the organization drive continued, in
the guise of a relation of trouble with the railroad service."
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following Tuesday, March 23, the hearing in the
representation case was held. The preceding day, Tarr, an
interplant driver, had approached Mawhir with a notice of
hearing and had told Mawhir that he had been requested by
Tanner and other drivers to observe the hearing. Mawhir
told Tarr the notice meant nothing and that he better be at
work. Tarr related that he considered that a threat that
otherwise he would be fired. The following day, Tarr was
served with a subpoena. However, he was unable to find
Mawhir to report this fact and, being afraid of losing his job,
did not honor the subpoena, but stayed at work.
As related above, on March 31, Tarr had an accident in
which a door of a trailer came off. He was told by Mawhir
that he knocked the door off, but Tarr did not believe that he
had done so. He testified that he thought the matter "was a
setup." The following day he was suspended for 3 days
because of this incident.
Following the suspension of Tarr, Respondent laid off
several employees which was the first layoff Respondent had
experienced since the last union drive in 1972. Clifford
Hammond returned from a run Tuesday night, March 29.
He went to the plant Wednesday morning and Mawhir told
him that he had nothing and that Hammond should return
the following morning. He did so and, when he saw Mawhir
in his office, Mawhir said that his run had been terminated.
Hammond asked if he was fired or laid off and all Mawhir
stated in response was that his run had been terminated.
Hammond asked the same question several times and was
uncertain whether he had been discharged or laid off. At
that time Hammond's run was from Mayville to Newtown,
Connecticut, and back through West Virginia, Pennsylvania,
and Ohio. On occasion he came back to Pennington,
Vermont. He expressed the opinion that that was not a
desirable run and that he had asked Mawhir on two
occasions to be relieved of it to which Mawhir replied that
when he got some seniority he would be relieved of that run.
Hammond testified that he had had accidents while working
for Respondent including backing into a telephone pole and,
when hauling some machinery from Vermont, it broke loose
from the trailer, and the back doors were smashed open.
However, he received driving awards during that period, and
he related that nothing was said to him about the accidents.
He further testified that the drivers tried to join the Union in
1972, and he was laid off at that time. According to
Hammond, other than Tarr, he had never heard of anyone
being discharged because of an accident. Hammond ex-
pressed the opinion that in his experience as a driver, the
accidents involving Tarr were not serious. The following
day, David Olson was terminated when he came in from a
run. The reason given by Mawhir was that Olson's run had
been terminated. When Olson persisted in obtaining an
explanation, Mawhir stated that he could not discuss the
matter because the decision had come from a higher echelon.
Olson was still not satisfied and asked why junior drivers
had not been laid off; Mawhir replied that his run had been
terminated and, therefore, he was laid off.
Shortly after the foregoing incident, Cecil Miller, who was
not known to be an adherent of the Union, was told by
Mawhir that he did not have to be concerned as long as
Ethan Allen stayed in Mayville. Mawhir asked Miller if he
were satisfied with his job and was told that business
appeared to be picking up. Mawhir also asked Miller if
anyone had been bothering him and Miller replied in the
negative. From Miller's cross-examination, it seems evident
that the questions of Mawhir related to the Union's
organizational effort.
Driver Larry Rogers had come in on the evening of Good
Friday and found no papers for his run the following week.
He asked Dispatcher Kahle about this matter and was told
that he would not know his run until about 5 or 6 p.m.
Sunday. Rogers did not receive a call on Sunday evening so
he went to Mayville the following morning. Kahle again told
him there were no bills for him. Rogers saw Mawhir and
talked to him about the matter. Mawhir stated that Rogers'
run had been terminated and therefore he was being
terminated. Rogers asked why he should be terminated and
Mawhir replied that others would be let go too. Mawhir
added that Rogers had been "a heck of a driver" and that he
would give Rogers any kind of recommendation that he
needed for a job.
Eugene Chelton returned from the road on Good Friday
and found no bills for the following week. On Sunday he
attempted 'to contact Mawhir, but without success. Monday
morning, at approximately 8 a.m., he went to Mayville. He
was told by Mawhir that his run had been terminated and
therefore he was terminated. Chelton disputed this, pointing
out that he did not have a steady run. Mawhir replied that
all of Chelton's runs had been terminated. Counsel for the
General Counsel points out in his brief that, in view of the
fact that Chelton was a relatively junior employee, who had
driven virtually all of the pedal runs in 6 months of his
employment, "Mawhir's statement, if taken at face value,
would mean that the operations of the Mid-East Consolida-
tion Warehouse Division, had virtually ceased." Chelton
challenged Mawhir about the retention of junior drivers.
Mawhir responded that others would go, although in fact
the three regular over-the-road drivers who were junior to
Chelton were not dismissed and were still employed at the
time of the hearing, although two of them had been hired as
over-the-road drivers as late as the first week in February.
The Decision and Direction of Election issued on April
14, excluding the warehousemen and plant clericals whom
Respondent had sought to include in the unit. Counsel for
the General Counsel argues that the persistence of the union
adherents among the drivers "occasioned further action by
the Company in an effort to insure that the distribution
operations of Ethan Allen would remain free from any taint
of Union organization."
On Friday, April 29, Miller came to the Mayville terminal
driving a pickup truck with Teamsters stickers on it, and
wearing a Teamsters button on his hat. As previously
related, Mawhir had questioned Miller after the largest
number of drivers had signed authorization cards in an effort
to ascertain whether Miller had signed a union card. Mawhir
handed Miller his bills for the next week. Thereafter Mawhir
contacted Miller to cancel the run but assured Miller that
there would be another run, but that Respondent would
have to cut the bills and have Miller pick them up later.
Miller returned the bills to the Falconer warehouse on
Monday, in the meantime not having received another
assignment. At that time, he was told by Mawhir that his
run had been terminated and that he was laid off. Counsel
566
MID-EAST CONSOLIDATION WAREHOUSE
for the General Counsel argues that "the absolutely incredi-
ble part of this sequence of events is that the run originally
assigned to Miller on Friday was not the run which he
usually took, and the run which was allegedly terminated
was not terminated until early Monday morning, just when
Miller would have expected to have taken the run in
accordance with the normal practice of letting senior drivers
have preferred runs."
An election was set for May 28, which was held. About 2
weeks prior to that, Tarr, whom Mawhir somewhat reluc-
tantly admitted he knew as an adherent of the Union, had a
minor accident in which two air hoses and an electric cord
were pulled from his tractor. This occurred shortly after the
Union's petition was filed. Tarr reported the incident to
Mawhir who told him not to worry that he (Mawhir) would
take care of it. Since it was almost quitting time, Tarr went
home. About two hours later Mawhir telephoned and told
him that he was discharged. Tarr asked Mawhir whether
Mawhir would contest his application for unemployment.
Mawhir replied that it was not up to him to decide.
About 2 weeks before the election, Wood overheard a
conversation in the warehouse between Mawhir and Dale
Babcock, one of the employees who had signed a card and
had also signed the counterpetition. Mawhir offered to sell
Babcock some damaged furniture at a greatly reduced price.
Wood related that he had been told in the past that
Respondent would destroy furniture rather than sell it in a
damaged condition. When Wood overheard this conversa-
tion, Mawhir made the offer to Wood. The day before the
election Mawhir talked with Wood in front of the garage.
Mawhir admitted that it looked suspicious that Respondent
had laid off several drivers out of seniority after the Union's
organizational efforts began, but promised that if the Union
were voted out, things would remain the same as they had
been. Wood asked Mawhir, "Well, what if we voted the
Union in?" Mawhir replied, "Well, I can't honestly tell you
what would happen."
The election was held on May 28 with the result that there
were four ballots for the Union, nine against and six
challenged ballots. The challenged ballots were those of the
six persons alleged as discriminatees in the unfair labor
practice case. Objections to the election were filed consisting
in substance of the conduct alleged in the complaint, and a
refusal to bargain charge was thereafter filed.
Chelton, who worked for the Respondent from October
1976 to April 11, 1977, at the Mayville plant, testified that in
February he attended a meeting of drivers at the Lakeview
Motel in Mayville and there signed a union card. At the time
he had a withdrawal card from Local 649 of the Union. He
gave the card either to Olson or Rogers. He worked the next
week and made a run and the following Saturday he had a
conversation with Mawhir when he had gone into the drivers
room in Mayville to turn in bills and ascertain where he was
going the following week. In speaking to Kahle, Richard
Lloyd, and a mechanic in the drivers' room, Kahle,
according to Chelton, "wondered what was going on about
the union; nobody asked him to join, and he felt slighted."
Mawhir then came out and called Kahle aside, and Kahle,
when he came back in, told Lloyd that they should get a
haircut and the two left. According to Chelton, Mawhir
asked whether he was satisfied working for the Respondent
and he told him that he was. Mawhir continued, according
to Chelton, by asking if he knew what employees had signed
union cards and Chelton replied he did not know. Mawhir
asked whether Chelton had signed a card and Chelton
replied that he had. According to Chelton, Mawhir then
"crawled on some mattresses that were on the truck, hung
his head, and started to sniffle, which I understand he does
when he's nervous. He told me, well, that wasn't the answer
I wanted, that I admire you for telling the truth." Chelton
testified Mawhir stated that he was not in favor of the
Union. Chelton told Mawhir he felt that had the 50-cent
raise been recognized at the meeting on the 19th, the
incident would not have happened. In addition, Mawhir told
him that he had about two troublemakers but no names were
mentioned. Chelton was terminated on Monday, April 11.
He had made a run the previous week to Buffalo, arriving
there on a Friday night. No one was there and Chelton's
wife had called Mawhir, and he had sent Chelton's paycheck
to the home of another driver. There were no bills waiting
for him, which was rather unusual, and no expense check
was waiting for him. On Sunday, he attempted to call
Mawhir and finally his wife got in touch with Mawhir's wife
who stated that Mawhir was not there and that he would
call back on Monday morning. When he arrived, Mawhir
told him that he was discharged on account of the railhead
and that he would be able to draw unemployment compensa-
tion. Mawhir told him that his runs had been terminated.
Chelton admitted that while he worked for the Respon-
dent he had had an accident, backing into a building in
Hudson, Ohio. He asked Mawhir about the matter, who
stated Respondent had a number of bad places to get into,
that he understood the matter and that Chelton should fill
out an accident report and the matter would be taken care
of. He did so, and did not hear anything more about the
incident. Chelton related that other employees had had
accidents and that one driver, Dale Babcock, had run over
two cars in a parking lot but was still employed by
Respondent.
On cross-examination, Chelton testified that he had a
conversation with Mawhir on the first Saturday after he had
signed the union card, which lasted about an hour and a half
or 2 hours. He further related that at the time of his
termination Mawhir stated, in substance, that he would have
to ship more by rail. Chelton denied that he had ever
received a letter concerning profit sharing, although he
testified that Mawhir read the letter over the telephone to his
wife. Chelton stated that Mawhir at no time threatened him.
C. Alleged Threats
We turn now to a consideration of the alleged incidents
involving threats. Rogers testified that on March 19,
Mawhir made a speech to the employees which he read from
a paper. He was shown a document and, after reading it,
testified that it was similar to the speech Mawhir made and
that he believed it was the speech. I deferred ruling on the
admissability of the document and, later in the hearing,
when Mawhir identified it, I thereupon received the docu-
ment in evidence. Mawhir began by stating that "in order
not to be misquoted I am going to read what I have to say."
He stated that he had both good and bad news, and started
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the good news first. He announced that commencing
March 21, 1977, the wages for drivers would be increased by
35 cents per hour and meal allowances would be increased
by S1 per day. This, he stated, was the result of Respondent's
annual survey of wages made in March of each year and
covers most of the drivers in the entire Ethan Allen system.
He then stated that some of the employees were aware that
"there is a good prospect of the railroad discontinuing the
spur track into Mayville. If that should happen and, frankly,
it looks very much like it is going to happen, it could mean a
big difference in all of our lives, beyond any question." He
pointed out that Respondent had used the Mayville ware-
house as a distribution center and had shipped from other
plants owned by Respondent into Mayville and from that
point the drivers had trucked the merchandise in a large
area. He said that Respondent "has had some of its officials
talking with the powers that be in Albany and they, in turn,
have been in contact with the Conrail-Federal railroad
system." He stated that the difficulty was that the State "has
been contributing to the loss in the operation of the spur but
this year have failed to make any provision for this expense"
and that Conrail was "very reluctant to bear the cost as their
policy in trying to save the railroads across the country has
been to cut out all unprofitable branch lines." He then stated
that at one time Respondent "had word that operations on
the spur line would be discontinued some time in April. If
this happens, we're all in trouble and distribution centers
would have to be revised drastically." He then stated that as
soon as he had any definite news the employees would be
advised. He then referred to the drive by the Union to
organize the drivers and stated that he wanted "to empha-
size it why we disagree with Union and think they would not
be for the best interest for all of you to have the Union here;
at the same time, you have a right, as free Americans, to vote
any way you please. Your vote will be secret, and no one will
know just how you vote. If anyone should threaten you with
the loss of your job or any other penalty because you either
vote for or against the Union I want you to come to me and I
will take care of the situation very quickly. I think this
Company can very well stand on its record of the past in the
fair treatment that you have received, and I hope that you
will retain your confidence in getting fair share for this
Company and for me."
The complaint alleges that on March 19, 1977, Respon-
dent threatened "to fire its employees if they joined or
assisted a labor organization." This allegation refers to the
foregoing speech made by Mawhir. It is obvious to me that
no threat was contained therein.
Nor do I find any basis in the testimony of driver Wood
for finding an alleged threat in the conversation he had with
Mawhir the day before the election. The entire conversation
is as follows:
And then he said that if we voted the union down that
things would go on as they did before. And I asked him
then I said, "well, what if we vote the union?" He said
"well, I can't honestly tell what would happen." Then
he said, "I don't know myself." And that was the end of
the conversation.
'Counsel for the General Counsel contends, in his brief, that Mawhir's
inquiry had reference to the Union's campaign. as indicated by the cross-
Even assuming that this conversation occurred exactly as
Wood stated, there is nothing in the statement by Mawhir
that reasonably could be construed as a threat of some kind
of reprisal. In my opinion, it is more reasonable to conclude
that the statement was a declaration by the manager who did
not know what changes a union or a union contract would
have on the operation of the business.
As previously related, Rogers testified that some time in
December 1975, he met with Mawhir in the Falconer office.
According to him, in the midst of a general discussion of
how things were going, Mawhir allegedly stated that if the
drivers "mess around" with the Union they'd all be out of a
job. Rogers related that he was an acting spokesman for the
drivers. However, Mawhir denied that he made the state-
ment or that Rogers was regarded as a spokesman.
Counsel for Respondent argues that in assessing the
credibility of Rogers it is important to note that Rogers also
denied that he received a general pay raise, but in fact his
status report, effective April 11, 1977, rates him as good as
to production, quality, dependability, and attitude. Another
status report, dated March 21, shows that he received a 35
cent increast to $4.50. Moreover, according to Rogers, the
meeting with Mawhir in Falconer took place in December
but the fact is that Mawhir did not move to Falconer until
the middle of January.
D. The Termination of Drivers
As set forth above, five drivers (other than Tarr, the facts
as to whose suspension and termination have previously
been doscissed) were terminated between March 30 and May
2, 1977. There seems to be no need to discuss the details of
each case. Uniformly, each driver was told that his route had
been terminated and that, in consequence, he was dis-
charged. When Olson, after being told that his run had been
terminated, sought an explanation, Mawhir said that he
could not discuss the matter as the decision came from a
higher echelon. Still not satisfied, Olson asked why junior
drivers had not been laid off; Mawhir repeated that his run
had been terminated and, accordingly, he was laid off.
Shortly after the foregoing exchange between Mawhir and
Olson, Miller, not known to have been a supporter of the
Union, was told by Mawhir that, as long as Ethan Allen
stayed in Mayville, he had no reason to worry. Mawhir told
him that business was picking up, and asked if he was
satisfied with his job. Mawhir also inquired if anyone had
been bothering him to which Miller replied in the negative.2
Rogers returned from a run on the evening of Good
Friday. Finding no papers for his run the following week, be
inquired of the dispatcher, Kahle, who stated that Rogers
would not know his run until Sunday evening. Receiving no
telephone call, Rogers went to Mayville Monday morning.
Kahle told him there were no bills for him. Shortly
thereafter, Rogers saw Mawhir, who said that his run had
been terminated and, therefore, he was terminated. Mawhir,
in response to Rogers' inquiry why he was being terminated,
stated that others would also be let go and that, as Rogers
had been "a heck of a driver," he would give Rogers any
kind of recommendation he needed for a new job.
examination of Miller, who testified that he would like to leave for California
for 6 months until the Union matter was over.
568
MID-EAST CONSOLIDATION WAREHOUSE
Much the same thing happened to driver Chelton. Finding
no bills upon his return from a trip on Good Friday, he
unsuccessfully tried to contact Mawhir on Sunday. On
Monday morning, he went to the plant, and was told by
Mawhir that, inasmuch as his run had been terminated, so
was he.
Counsel for the General Counsel, in his brief, argues that
if Mawhir's statement to Chelton is "taken at face value, [it]
would mean that the operations of the Mid-East Consolida-
tion Warehouse Division, had virtually ceased." Moreover,
and of more significance, the Respondent came forward with
no trustworthy business records establishing that operations
had fallen to the point necessitating termination of the
several runs. Also to be noted is the fact that, as Chelton
pointed out to Mawhir, three regular over-the-road drivers
junior in service to him were still working at the time of the
hearing, although two of them were hired as late as the first
week in February.
Miller, who was not regarded by Mawhir as a proponent
of the Union, came to the Mayville terminal on Friday,
April 29, wearing a Teamsters' button on his hat and driving
a pickup truck that was decorated with Teamster stickers.'
Mawhir gave Miller his bills for the following week. Shortly
thereafter, Mawhir tried unsuccessfully to contact Miller to
cancel the run. When he finally reached Miller, he told
Miller there would be another run, but the bills would have
to be cut and Miller should pick them up later. On Monday,
Miller returned the bills to the Falconer werehouse; he had
not received another assignment in the meantime. When he
saw Mawhir, the latter told him that his run had been
terminated and he was laid off; Mawhir did promise him a
good recommendation. According to counsel for the General
Counsel, "the absolutely incredible part of this sequence of
events is that the run originally assigned to Miller on Friday
was not the run which he usually took, and the run which
was allegedly terminated was not terminated until early
Monday morning, just when Miller would have expected to
have taken the run in accordance with the normal practice of
letting senior drivers have preferred runs."
E. Alleged Unlawfi! Grant of Benefits
One matter falling within this category concerns the sale
of damaged furniture to employees.
Wood testified that about 2 weeks before the election he
oeverheard a conversation between Mawhir and employee
Babcock. He related that the two were discussing some
damaged chairs that Babcock was buying. He testified that
Mawhir "said that they had a lot of this type of furniture,
and he said that he was selling it to the drivers if they wanted
it," and "real reasonable becaust it was damaged." Accord-
ing to Wood, "in the 7 or 8 years that I have been employed
there, this has never been done before." Previously, so he
testified, Respondent had once had a sale on a certain date;
theretofore, Respondent had destroyed the "damaged stuff
rather than sell it, because they did not want it out for the
public to see."
Counsel for Respondent argues that the assertion by
Wood, that Mawhir was offering Babcock the right to buy
Mawhir had questioned Miller after the largest number of drivers had
signed union cards and inquired if he was "satisfied." Counsel for the General
damaged furniture "is extremely important because not only
was it false, but it underscores that other of Wood's
testimony is false when it was on a one to one basis and
cannot be possibly verified."
Mawhir testified that the quality control man looks over
the damaged furniture and, if in his opinion the damage is
slight, "a bill of lading is made out, and we charge the plant
for that piece of furniture." The quality control man
"proceeds with the repairs and bills" Respondent therefor.
However, if in his opinion the damage is such that repair is
not warranted, it is offered to employees. If they do not want
it, the damaged furniture is "put in what we call the wood
hog and chewed up into sawdust and burned. He related that
this "has been a policy that has been going on for a
considerable time."
F. The Election Objections and Alleged Refusal To
Bargain
The objections to the election in substance incorporate the
allegations contained in the complaint; therefore, disposition
of them will be deferred unil after the allegations of unfair
labor practices are resolved.
The complaint as amended alleges, and I find, that all
truck drivers, including the mechanic-driver employed by
Respondent, exluding all office clerical employees, guards,
professional employees and supervisors as defined in the
Act, constitute an appropriate unit within the meaning of
Section 9(b) of the Act. I further find that at all times since
on or about February 19, 1977, the Union has been the
exclusive collective-bargaining representative of said em-
ployees.
As previously related, the credible evidence establishes,
and I find, that Respondent violated Section 8(a)(1) of the
Act by the following conduct:
I. The statement of Mawhir to Rogers, in December 1976,
that if the drivers continued to "mess around" with the
Union all of them would be out of a job.
2. In late December or early January by Mawhir's
suggestion to Wood that the latter dissuade the drivers from
supporting the Union.
3. By its action in reducing the working hours of Tarr
after he had testified at the Board's representation hearing.
4. Mawhir's questioning of Chelton about his union
activities and the union activities of other drivers.
5. Mawhir's action in announcing on March 19, at a
meeting of drivers, a 35-cent per hour wage increase for the
drivers after a majority had indicated their support of the
Union and, at the same meeting, making a veiled threat that
the plant would close if the organizational drive continued.
6. Mawhir's refusal to permit Tarr to attend the Board's
hearing on the representation petition.
7. The termination of six drivers between March 30 and
May 12, 1977.
8. Mawhir's asking Miller if he had signed a union card.
9. Mawhir's promising Wood that if the Union were voted
out, conditions would remain the same as they had been.
William Hawkins is Respondent's director for distribution
operations with offices in Danbury. He has been there for 3
Counsel argues that this inquiry really meant if Miller had signed a union
card.
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years, having previously held other positions with Respon-
lent. He is also responsible for equipment maintenance, new
onstruction, and the purchase and leasing of new equip-
rnent. In March 1977 Hawkins had a number of discussions
with his superior, Lawrence Thompson, Respondent's vice
president of administration and physical distribution, con-
:erning the railroad situation in the Mayville-Corry area. It
was felt that Respondent would have to continue the rail
)peration. At least one reason therefor was that it cost less to
;hip by rail than by truck.
According to Hawkins, the decision to terminate Miller's
run, after he had "procrastinated a little bit," was made
Monday morning. May 2. Counsel for the General Counsel
:ontends that Hawkins' account is an "absolutely incredible
:ale from an absolutely incredible witness" which, if be-
lieved, would establish that Miller was "the victim of a most
remarkable series of coincidences." He contends there was
'no coincidence at all," but that the decision to terminate
Miller was made with malice aforethought, "but only after
he had been discovered to be a union adherent."
Counsel for the General Counsel argues that other
.vidence demonstrates that Hawkins is not entitled to be
:redited. Thus, Thompson, the immediate superior of
Hawkins, testified, on cross-examination, that he, together
with the director of personnel and industrial relations,
:oordinated the matter of wage increases at the various
locations and distribution centers, including both merit
Increases and general increases. The announcement of the
1977 general increase was made in February or early March,
ind was 35 cents per hour for truck drivers, In addition, the
meal allowance was increased $1 per day. Thompson
:estified that the wage increase was not motivated by any
anion organizational attempts. He further related that the
truck drivers in the distribution operation were not union-
ized.
G. Concluding Findings
As related above, the present organizational effort of
Respondent's truck drivers was not the first occasion that
they exhibited an interest in union activity, that 1972 effort
resulted in four drivers being taken out of driving duties and,
apon turning in their union authorization cards to Mawhir,
the layoffs were ended, and they were returned to work.
When the drivers again became interested in organizing,
Mawhir told employee Roger, whose testimony I credit, that
the drivers would be out of a job if they continued to "mess
around" with the Union. Shortly after this episode, employ-
xe Wood told Mawhir that he had heard rumors concerning
' Counsel for the Respondent cites N H. Limited, d/b/a Earringhouse
Imports 227 NLRB 1107 (1977), as authority for the proposition that here the
Respondent has established a "business necessity" for requiring Tarr to
remain on thejob.
While the two cases are somewhat similar, E H. Limited involved a large
number of employees who wished to attend the Board hearing. The Board
majority, Chairman Murphy, Member Fanning, and Member Jenkins held,
irst, that there was no evidence presented that the respondent told the
mployees or claimed that "ear of serious business or economic conse-
:uences" lay behind the order forbidding employees to attend, Second, the
respondent's conduct "was largely inconsistent" with any conclusions that it
"was truly concerned with lost production or other business disruption,
Third, inasmuch as the termination took place 2 hours before quitting time
mnd there was no indication of available replacements, these factors were "also
inconsistent with" a "professed concern about maintaining production."
another organizational move, Wood, whose testimony I
credit in this regard, stated that, Mawhir referred to the
prior union effort and requested Wood to endeavor to
dissuade the drivers from supporting the Union. I have not
overlooked the discussion Tarr had with Mawhir the day
before the representation hearing. Tarr asked if he could
attend the hearing as the elected representative of the
drivers. Mawhir advised Tarr that he had three trips for him
on the hearing date and, so Mawhir testified, told Tarr that
he was not aware that Tarr was "involved in any labor
meetings," that it was necessary that he make the trips, and
that he therefore felt Tarr "should work." Mawhir testified
that it was necessary to have the trailers at Cherry Hill
because there was no storage room available and the product
"came right off the assembly line right into the trailer." As
counsel for the Respondent points out, at that time Tarr had
not been subpenaed. However, the following day he was
subpenaed, but could not find Mawhir to advise him thereof
and was told by the secretary and the dispatcher that they
had no authority concerning the matter. Tarr worked,
testifying that he feared that he might be fired if he went to
the hearing.'
It has been related previously that Tarr had a number of
accidents at work. Thus, on March 31, a door came off a
trailer he was pulling to the front dock. Mawhir told Tarr, to
whom Tarr reported the incident; Mawhir later suspended
him for 3 days. Tarr also scraped a truck in a construction
area, which, as Mawhir later told Tarr, caused damage in
the amount of $68.
Tarr signed a union card at the February 19 meeting,
following a meeting Mawhir had with the employees the
same evening. On March 21, Tarr approached Mawhir and
stated that the drivers wished him to appear at the Board's
representation hearing the following day as an observer.
Mawhir, in effect, directed Tarr to work that day, which he
did. The following day, Tarr had been served with a subpena
to attend the hearing. Being unable to locate Mawhir to
consult with him about the matter, Tarr spoke to the office
secretary and the dispatcher about having been subpenaed to
appear, but each disclaimed authority to honor the subpena.
In consequence, Tarr worked.
I infer from the sequence of events that Mawhir, at or
about the time of the March 22 Board hearing, became
aware that Tarr was a member of or interested in the Union.'
The termination of runs and the drivers who customarily
manned them stand upon a different footing. As aptly stated
by counsel for the General Counsel in his brief, if the
Respondent's position were accepted it would mean that its
operations were grinding to a standstill. However, no
Members Pennelo and Walker agreed that "employee attendance at a Board
hearing is a form of protected activity." However, they stated they could not
"accept the majority's result that employees are free to leave work to attend a
hearing unless their employer can demonstrate substantial business reasons
for forbidding them to leave work for such purpose."
In my view the present case presents such a "business necessity," and I so
find.
'Indeed, Mawhir testified that it was not until the Board hearing on March
22. that he knew Tarr was a union supporter. However, that circumstances
does not lead me to conclude that that circumstance had any causal relation to
Tarr's 3-day suspension.
While the matter is not free from doubt, I am of the opinion that Tarr's
accidents with equipment were the principal factor motivating Mawhir to
suspend Tarr, and I so find.
570
MID-EAST CONSOLIDATION WAREHOUSE
reliable documentary evidence in support thereof was
produced by Respondent. Furthermore, it is significant that,
as pointed out to Mawhir by Chelton, three regular drivers
junior to him were working at the time of the hearing, two of
them having been hired as late as the first week in February.
In this connection, it is also worthy of note that Hawkins,
director of distribution operations, gave the Board inconsis-
tent statements. Thus, in his affidavit, sworn to on May 22,
1977, he stated that he made "the decision that when we
discontinued a run we would do it by letting go the man who
had the run. I did it because I felt that it was the way to do
it. We do not operate on a seniority system, ... I was aware
that some senior drivers were being let go." However, on
cross-examination Hawkins testified as follows:
Q. I believe you said that you were the one that made
the decision on how drivers were to be terminated?
A. Yes, sir, I did.
Q. And it was your decision it would be just
terminating the driver with the route?
A. Yes.
Q. Well, I don't recall your giving me any basis as to
why you decided to terminate the drivers; but it is my
understanding that you just decided, when terminating
the route, that you would just terminate the driver?
A. Yes.
Q. You're doing it with the knowledge that you're
letting go the senior driver?
A. I did not do that with that knowledge.
Q. You were not aware that the senior driver was
being let go?
A. May I clarify one thing in this statement?
Q. Well, I'd like you to answer my question, sir.
MR. LEVENSON: If you can, please. I think the man
is trying to answer his question.
MR. KENNEY: I want him to answer my question.
MR. LEVENSON: I'm sorry. You think he doesn't like
answering, but he's trying to answer.
THE WITNESS: At the time I didn't know each driver
by name in Mayville.
Q. (By Mr. Kenney) At the time people were being
let go you were aware of the fact that some of these
were fairly senior drivers?
A. Yes.
Q. Yes?
A. No, no. You know, I did a lot of soul-searching
with this thing, and I decided that that was the way it
should be.
Q. And isn't it also true, sir, that you knew there was
a driver which had been hired as soon as the first week
in February that was not let go?
A. Sir, you're reading the statement we took in
Buffalo?
Q. Sir, I am asking you a question. I wish you would
answer my question, sir.
JUDGE PETERSON: Go ahead.
THE WITNESS: At the time did I know that? No, sir,
I did not.
As previously related, Wood brought up with Mawhir in
late December or early January, the matter of a raise in pay.
Later, at a meeting of drivers called by Mawhir on February
19, the possibility of a 50-cent raise was discussed but
Mawhir, according to several employee witnesses, stated
that if employees wanted that much they would have to go
elsewhere. Mawhir testified that, to the best of his knowl-
edge, he indicated that a 5-percent raise was possible. At the
March 19 meeting called by Mawhir, he read a prepared
statement in which, among other things, he stated that
commencing March 21, "the wages for drivers will be
increased by 35 cents per hour, also meal allowances will be
increased by $1.00 per day." He further said that these
increases were the "result of our annual survey of wages
made in March of each year and covers not only you folks
but covers most of the drivers in our Ethan Allen system.
We have always felt that we had an obligation to our people
to continually be aware of the rising cost of living."
To summarize, I come to the following final conclusions:
(a) The Respondent violated Section 8(aX)) of the Act by
the statement of Mawhir to employee Rogers that the
drivers would be out of a job if they continued to "mess
around" with the Union; in addition, that provision of the
Act was breached by Mawhir's request that employee Wood
endeavor to dissuade the drivers from supporting the Union.
Also, I find that Mawhir's inquiry of Miller whether anyone
was bothering him and if he were satisfied with his job, was
related to and concerned Miller's union activity, and thus
violated Section 8(a)(1). As previously found, Respondent
did not violate the Act by requiring employee Tarr to work
the day before the Board's representation hearing, although
his fellow employees had asked that he do so as their
representative.
(b) With regard to Tarr's 3-day suspension because of
accidents with equipment, I come to the conclusion, al-
though the matter is by no means free from doubt, that
Mawhir was primarily motivated by Tarr's past accident
record and the damage to equipment on the occasion
encompassed in the complaint. Accordingly, I will recom-
mend that this aspect of the complaint be dismissed.
(c) Considering next the alleged unlawful grant of bene-
fits, I am of the view that the Act was not violated by
Respondent either by the wage increase or by allowing
employees to purchase damaged furniture. The weight of the
evidence establishes that Respondent undertook to review
wages for its entire national operation, rather than just in the
facility at Jamestown, considerably before union activity
began, and in accordance with its long-established practice.
Nor do I find that allowing employees to purchase damaged
furniture if they so desired, a policy that had existed for a
substantial period, amounted to an infringement of the Act.
Therefore, it will be recommended that these allegations be
dismissed.
(d) We next take up the reduction of truck runs and the
lay off of drivers. As previously found, in the space of about
a month Respondent reduced its staff from about 20
employees to 14. As counsel for the General Counsel in
substance observes in his brief, if this curtailment of truck
runs and employees were accepted at face value, the
conclusion would be justified that Respondent's business
was in the process of drawing to a close. However, as
pointed out earlier in this decision, Respondent came
forward with no reliable business records to substantiate the
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drastic reduction in runs and drivers, although, in view of
the nature of the business, it would appear that such data
would be readily available. Of particular significance in this
respect is the fact that three drivers, junior in service to
Chelton, were retained following his layoff and were
working at the time of the hearing, two having been hired in
the latter part of February. The evidence in the record, and
the reasonable inferences to be drawn therefrom, persuade
me, and I accordingly find, that Respondent reduced the
number of its truck runs and the complement of truck
drivers primarily in an effort to defeat the Union's organiza-
tional efforts and to eliminate specific drivers whom Mawhir
knew to be supporters of the Union and to have engaged in
prounion activity. By such conduct, Respondent violated
Section 8(a)(3) and (1) of the Act.
Having found that the termination of the six truck drivers
violated the Act, and considering that such conduct formed
the basis for the Union's election objections, it necessarily
follows that the challenged ballots of these persons be
opened and counted. In the event that after these ballots
have been counted the Union does not have a majority of the
valid ballots cast, the election should be set aside and
another election conducted when the Regional Director
determines the time to be appropriate. I so recommend.6
' Counsel for the General Counsel, in his brief, requests that in the event the
Union does not obtain a majority, the election be set aside, the petition
dismissed, and that the Respondent "be directed to bargain with Local 649, as
the chosen exclusive collective-bargaining agent of the drivers at the Mayville
operation." I deem this would be inappropriate, in view of the lapse of time
CONCLUSIONS OF LAW
1. Mid-East Consolidation Warehouse, A Division of
Ethan Allen, Inc., Jamestown, New York, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Truck Drivers Local Union No. 649, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that Respondent cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
and the turnover of employees. It appears to me that the results of a new
election on the basis of a current payroll wou'd be more satisfactory and if
won by the Union, considerably more conducive to stable collective-bargain-
ing relations.
572