Mr. Removal, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1978

235 N.L.R.B. 279 (N.L.R.B. 1978)

MR. REMOVAL, INC.
Mr. Removal, Inc. and Local 135, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 25-CA-
7867
March 21, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On September 20, 1976,' Administrative Law
Judge Robert A. Giannasi issued the attached
Decision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief. 2
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 brief
and has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge, to
modify his remedy,4 and to adopt his recommended
Order.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union activities
and threatening them with reprisals for engaging in
union activities or choosing the Charging Party,
herein called the Union, to represent them.
We further agree with the Administrative Law
Judge that a preponderance of the relevant evidence
establishes that employee Douglas Young was dis-
charged for his union activity rather than for the
reason asserted by Respondent, i.e., that it learned
Young planned to return to work for Ford Motor
Company 5 and thus continue to work for both Ford
and Respondent, although Respondent had allegedly
previously told Young that he could not work for it
and for Ford. In reaching this conclusion, the
1 Unless otherwise indicated, all events herein occurred in 1976.
2 Pursuant to the order, dated September 20. transferring the above-
entitled proceeding to the Board, exceptions to the Administrative Law
Judge's Decision were due on October 13. On October 22, in the absence of
a timely filing of exceptions or a request for an extension of time to file
exceptions, the Board adopted the Administrative Law Judge's findings and
conclusions and ordered Respondent to take the action set forth in the
recommended Order. Respondent's undated "Motion for an Extension of
Time in which to file Exceptions to the Administrative Law Judge's
Decision," apparently postmarked October 9. did not come to the Board's
attention prior to issuance of the order adopting the Administrative Law
Judge's Decision and recommended order. Respondent then filed an
undated "Motion to Reconsider Order Dated, Washington. D.C., October
27 [sic j, 1976," which the Board denied on November 5. Thereafter, the
Board applied to the United States Court of Appeals for the Seventh Circuit
for summary entry of a judgment enforcing the Board's order. On Aprnl 28,
1977, the court denied the Board's application for summary entry and
remanded the matter to the Board. By letter dated June 9, 1977, the Board
accepted the court's remand of the case and set a date for the filing of
235 NLRB No. 46
Administrative Law Judge relied, inter alia, on his
finding at footnote I of his Decision that Respon-
dent's president, Dallas Schnitzius, testified at one
point that on March 2 Young told him that he
(Young) was returning to Ford on March 15, and
that Schnitzius elsewhere testified that Young did not
relate this fact to him until March 11. Respondent
excepts to this finding and to the Administrative Law
Judge's reliance thereon in discrediting Schnitzius'
testimony. Our review of the record indicates, as
Respondent contends, that the Administrative Law
Judge misinterpreted Schnitzius' responses to certain
questions asked at the hearing and that the proper
interpretation of Schnitzius' testimony regarding this
incident is that Young told him during the March 2
conversation that he (Young) would be returning to
work for Respondent, rather than Ford, on March
15.6 Despite our conclusion that the Administrative
Law Judge misinterpreted some of Schnitzius' testi-
mony, however, examination of the record reveals
discrepancies in critical areas of Schnitzius' testimo-
ny which support the Administrative Law Judge's
resolutions with respect to credibility.
Respondent asserts that it did not learn of Young's
intent to return to Ford until March 11, whereupon
he was discharged. Young's unwavering testimony,
however, was that on February 27, following receipt
of a telegram from Ford directing him to report for
reinstatement processing, he notified Schnitzius that
he had been recalled by Ford. In contrast, and
consistent with Respondent's alleged basis for dis-
charging Young, Schnitzius repeatedly asserted that
he did not learn until March 11 that Young was
returning to Ford. However, when asked to relate
what he knew about Young's plans with regard to
Ford prior to March I 11, Schnitzius gave several
different and conflicting versions of conversations
with Young on the subject. Thus, when initially
called as an adverse witness by the General Counsel,
Schnitzius testified that, in a telephone conversation
with Young about a week before March 11, Young
exceptions. Thereafter, Respondent filed timely exceptions to the Adminis-
trative Law Judge's Decision.
3 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 credibili-
ty 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 (C.A. 3, 1951). We have carefully
examined the record and find, as set forth below, that there is no basis for
reversing his findings.
4 Interest on monetary awards is to be computed in the manner
prescribed in Florida Steel Corporation. 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
5 Herein called Ford.
6 On January 20, while working for Respondent, Young injured his wrist.
Consequently, he was required to wear a cast which was not removed until
March 2 and prevented Young from working through mid-March, when he
secured a medical release from his physician.
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicated he might be returning to Ford sooner than
Schnitzius thought, even sooner than June, but that
Young was evasive and unwilling to define "sooner,"
stating, "I will tell you when I talk to you."
Schnitzius, however, described this conversation
quite differently when he later took the stand as a
witness for Respondent. At that time, Schnitzius
testified that, on March 2, Young indicated that his
reinstatement at Ford "may be a lot sooner," but
assured Schnitzius that it would not be before early
spring or June.7 Schnitzius' second account of this
conversation thus differs substantially from the first,
but both accounts contradict Respondent's assertion
that it did not know until March 11 that Young was
returning to work for Ford at all. Consequently, we
find, in agreement with the Administrative Law
Judge, that Schnitzius was not a candid and truthful
witness. In reaching this result we further rely on the
Administrative Law Judge's statements that he based
his credibility resolutions not only on inconsistencies
in Schnitzius' testimony, but also upon other evi-
dence and upon his observations of the witnesses'
demeanor. Accordingly, we find that a clear prepon-
derance of all of the relevant evidence does not
support the conclusion that the Administrative Law
Judge's credibility resolutions were incorrect.
Based on the credited evidence, including the fact
that Respondent's operations manager, Jerry Schnit-
zius, told two employees that Young was fired for
trying to organize a union, we find, in agreement
with the Administrative Law Judge, that Respon-
dent's asserted reason for discharging Young was
pretextual and that Young was discharged for engag-
ing in union activities in violation of Section 8(a)(3)
and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Mr. Removal,
Inc., Indianapolis, Indiana, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
7 While testifying as an adverse witness, Schnitzius related a similar
conversation regarding Young returning to Ford in June, but placed that
exchange in early February.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
give evidence, the National Labor Relations Board
has found that we, Mr. Removal, Inc., violated the
National Labor Relations Act, and ordered us to
post this notice.
The Act gives you the rights:
To form, join, or help unions
To choose a union to represent you in
bargaining with us
To act together for your common interest
or protection
To refuse to participate in any or all of
these things.
WE WILL NOT discharge you, or otherwise
discriminate against you, because you have en-
gaged in organizing activity for, or are a member
or supporter of, Local 135, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
WE WILL NOT ask you whether you are engag-
ing in union activities or whether other employees
are engaging in union activities.
WE WILL NOT threaten you with discharge or
other reprisals because you may wish to be
represented by Local 135, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union for
collective bargaining.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed in the National Labor Relations
Act.
WE WILL offer employee Douglas Young rein-
statement to his former job, or to a job substan-
tially equivalent, without prejudice to his seniority
or other rights and privileges, and WE WILL make
him whole for any loss of pay he may have
suffered because we discharged him, plus interest.
MR. REMOVAL, INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard in Indianapolis, Indiana, on June 28 and
29, 1976, on a complaint originally issued on May 28, 1976,
and amended on June 17, 1976, alleging that Respondent
280
MR. REMOVAL, INC.
violated Section 8(a)(1) of the Act by various statements
and Section 8(a)(3) and (1) by discharging employee
Douglas Young because he engaged in union activities. At
the hearing the complaint was amended to include other
violations of Section 8(a)(l) by virtue of interrogations of
employees about a week before. The General Counsel and
Respondent filed briefs.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, an Indiana corporation with its principal
office in Indianapolis, is engaged in performing waste
removal and related services. During the past year, Re-
spondent purchased goods and materials valued in excess
of $50,000 from States other than Indiana and performed
services, the gross value of which exceeded $500,000. I
therefore find, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (here-
inafter called the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Young was employed by Respondent as a commercial
truckdriver for 2 years from 1971 to 1973. During this
period of employment, Young was also employed by the
Ford Motor Company. He was on layoff status at Ford for
about 4 months but most of the time he worked the second
shift at Ford from 3:30 to 11 p.m. He began his work for
Respondent in early morning hours and usually finished by
I a.m. Young also worked overtime and on Saturdays.
Respondent's President, Dallas Schnitzius, had no objec-
tion to the hours worked by Young so long as he completed
his route. At times he was unable to complete his route
either due to equipment failure or his need to report to
work at Ford. When possible he would complete his route
and take accumulated leave from Ford. Also during this 2-
year period, Young obtained numerous new accounts for
Respondent for which he was paid.
There was conflicting testimony as to why Young left
Respondent in 1973. It is clear he was not discharged and
left of his own volition. Young testified that he left because
of Respondent's truck breakdowns which apparently made
it difficult for him to meet his obligations at Ford.
Respondent's witnesses testified that he quit because it was
mutually agreed that he could not or did not wish to handle
both jobs. They also testified that Young had missed
completing his route on numerous occasions because of his
job at Ford and that he was told this was unacceptable to
Respondent. Young testified that he was unable to com-
plete his runs on just a few occasions mostly due to
equipment breakdown. There was testimony that other
drivers were unable to complete their routes and that there
were some problems with equipment breakdowns.
After Young left his employment with Respondent, he
returned to the premises on several occasions and was even
pressed into service when another driver failed to show up
for work. Young and President Dallas Schnitzius had
several conversations about the possibility of Young
returning to work for Respondent. There was testimony
that there is considerable turnover in the driver comple-
ment in Respondent's operation and Respondent values
high stability and experience in employees. In November
1974, Young was laid off by Ford. In October 1975, Young
went to see Dallas Schnitzius and asked for work. Schnit-
zius said that when he had an opening he would rehire
Young.
Respondent rehired Young on December 1, 1975. Ac-
cording to Young, Dallas Schnitzius asked Young whether
he intended to work both for Respondent and Ford. Young
said he planned to work for both. There was testimony
from Schnitzius that he, Schnitzius, hired Young only on
the condition that he not work for Ford. I do not credit this
testimony. (See, infra, fn. 1.) It is clear from Respondent's
own witnesses that Dallas Schnitzius rehired Young be-
cause of his experience and because he was having trouble
in obtaining good drivers.
During his second period of employment, Young contin-
ued to obtain new accounts, and, according to all of the
testimony, performed his work in a satisfactory manner.
On January 20, 1976, Young was injured on the job and
chipped a bone in his wrist. He attempted to work with a
helper for a week because of his injury. Following his
injury he returned to Respondent's office each Friday to
pick up his workmen's compensation check.
On February 14, Respondent held a dinner meeting for
its drivers to discuss safety and other working conditions.
Young attended. At this meeting Dallas Schnitzius asked
Young when he would be ready to return to work. Young
said "in a couple of weeks" and Schnitzius said "fine."
On February 27, Young went to the Union's offices and
met with a union representative. He signed a union
authorization card and received a number of blank cards
for distribution. Young then contacted several of Respon-
dent's employees in an effort to interest them in supporting
the Union. He talked to them at their homes and in
Respondent's parking lot.
He invited most of the employees to attend a steak
dinner at a local restaurant on February 28. Only three or
four employees attended Young's dinner meeting; one of
these was "Gene," a truckdriver employee. Young dis-
cussed the advantages of unionization and apparently
distributed the blank authorization cards, but, because of
the opposition to the Union expressed by "Gene," Young
did not attempt to get the cards signed by the employees.
On February 27, Young also talked to Dallas Schnitzius.
Young told Schnitzius that he would be seeing his doctor
on March 2 and he would let him know at that time when
he could come back to work. He also told Schnitzius that
he had been recalled by Ford and was seeking to work the
afternoon shift.
On March 2, after seeing his doctor, Young visited
Dallas Schnitzius and told him that he had been released
281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for work on March 15. Young also indicated to Office
Manager Ed Smith and Jerry Schnitzius - Dallas' brother
and Respondent's operations manager - that he was
returning to Ford.1
On or about March 5, Young returned to Respondent's
office to pick up his workmen's compensation check.
Although he spoke to Ed Smith briefly, nothing was said
about Young's return to work. Dallas Schnitzius did not
speak to Young on this occasion although he was at the
office. Young also spoke to a number of employees in the
parking lot and was observed by Dallas Schnitzius and Ed
Smith, who commented on this.
While at Respondent's facility, Young also spoke with
employee Henry Mink who told him that Respondent had
hired another employee to run his route. John Langham, a
new hire, had started work on March 3 running Young's
route. The route had been run during the previous weeks
by existing employees who, for one reason or another, did
not work out satisfactorily.
On March 8, Jerry Schnitzius came up to Henry Mink in
the garage. Employee Owen Mink was also present. He
told Henry Mink "did you hear what Doug tried to do to
us?" Henry said "no" and Schnitzius replied "he tried to
get a union in." Henry asked how he knew and Schnitzius
said "John" and "Gene" (two truckdriver employees) told
him and added "but we fired him."2
On March I I, Young phoned Dallas Schnitzius and told
him he was prepared to return to work on Monday March
15. Schnitzius responded, "well Doug, I don't need you."
When Young asked why, Schnitzius said that Young was
dissatisfied with his job and that he had hired someone else
for Young's route.
On the following day, March 12, Young went to
Respondent's office to see Dallas Schnitzius. According to
Young, whom I credit, Schnitzius again told him that he
I The above is based on the testimony of Young who impressed me as a
candid witness totally without guile. I have therefore credited Young where
his testimony conflicts, as it does in many instances, with that of Dallas
Schnitzius. I found Schnitzius not to be as candid and truthful as Young.
His testimony is inconsistent in several crucial areas. For example,
according to Schnitzius, he did not fire Young until March II and he
insisted when he first took the witness stand that he was first notified on
March II that Young would be going back to Ford on March 15 and that he
then and there discharged Young. But in answer to my questions when he
took the stand later, he testified that it was on March 2 that Young told him
he was returning to Ford on March 15. Thus he testified that, on or about
March 2, Young called him and said it was possible that he could return to
work on March 15. Schnitzius also testified that he asked him about his
recall at Ford and Young said it would be early spring or June. Schnitzius
then replied "if it is going to be sooner than that let me know ... because I
am not putting you back to work if I have somebody off, if you are going
back to another job." This testimony indicates to me that Dallas Schnitzius
was attempting to establish that he immediately fired Young upon learning
of his definite return to Ford on March 1; his story falls, however, when he
testified later that he was so notified on March 2. He either knew on March
2 of Young's definite date of return at Ford and said nothing until Young
called him on March I I or he fabricated the March 2 conversation. I cannot
credit a witness whose testimony on such a crucial issue seems to me to be
contrived to reach a self-serving end result.
2 The above is based on the credited and mutually corroborative
testimony of Henry and Owen Mink who impressed me as reliable and
objective witnesses. Henry Mink was still employed at the time of the
hearing and Owen candidly admitted he left Respondent's employ because
Jerry Schnitzius had been promoted over him.
Jerry Schnitzius, whose testimony conflicts with that of the Minks, did
not impress me as a candid witness. He testified that the conversation took
place on March 15 and he thought Mink started the conversation. He also
was discharged because he (Young) was dissatisfied with
his work. Young said he knew that he was being discharged
because he was trying to organize a union. Schnitzius
responded by saying "you mentioned that, not me."
Young's testimony is as follows:
So, when I mentioned the Union, he said to me,
"well, if I had knowed you was trying to organize a
Union, you wouldn't be here in this office now." And,
he got real hateful with me and began telling me that
nobody, "no bastard, was going to work for him, in the
Union." That, to organize a union, no bastard was
going to work for him. He said that within a year's time,
he would get rid of every bastard out there.
So, I went ahead and tried to explain to him what
was wrong, and he told me, I said something about
somebody else trying to organize a Union and I said to
him, I said, "Big George." And, he said the only trouble
he had with Big George, was that he needed a helper, so
I said, "well, he had tried to organize a Union."
And, he said, "Yes, and I got all the cards here," you
know, that was signed, just like I signed, he was
supposed to have them there at the office.
So, he informed me that he could buy the Union out,
he could also sell his business, but he wasn't going to
have no bastard telling him how to run his business and
he also accused me of trying to steal his company.
Smith, who also was present, then told Young about the
disadvantages of a union and Dallas Schnitzius again said
testified that Mink knew about the hiring of a new driver and asked him if
Young was going to be put back on the route. He replied" 'no,' that Doug
had been fired" and "on top of everything else he tried to organize a union."
On cross-examination, however, he embellished his remarks by adding that
he told Mink "well it is after the fact now, because he was fired for going
back to Ford." I find the latter remark, which was Respondent's asserted
reason for the discharge, unbelievable and illustrative of Schnitzius'
testimony overall, which was characterized by self-serving statements and
embellishments.
Significantly, the Minks' testimony that Schnitzius said that "John" and
"Gene" told him about Young's union activity is consistent with other
testimony that "John" and "Gene" were truckdrivers and "Gene," at least,
attended Young's abortive union meeting on or about February 28.
Moreover, the Minks' testimony that the conversation took place before
March 12 when Young was personally notified of his discharge withstood
vigorous cross-examination. It is also corroborated by the testimony of
Henry Mink and Young that Young told Mink on March 12 of his
discharge. Therefore it would have been incongruous for Mink to ask about
Young going back on his route on March IS as Jerry Schnitzius testified.
Furthermore Schnitzius prefaced his testimony about the conversation by
stating that Mink knew Respondent had hired a new driver for Young's
route, Since Langham first began work on March 3 and Mink and
Schnitzius both worked in the garage and saw each other daily, it is highly
likely that the conversation occurred shortly after the hiring of Langham on
March 8 as Mink testified, rather than on March 15 as Schnitzius testified.
Finally, I find no incongruity in the testimony that Schnitzius used the past
tense when referring to Young being fired because Young was personally
notified he was discharged on March 12, but, in view of the hiring of
Langham in advance of this, it is clear to me that the decision was made
some time before. For all of these reasons and from my observation of the
demeanor of the witnesses, I credit the Minks' account of the conversation
with Jerry Schnitzius about Young trying to organize a union.
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MR. REMOVAL, INC.
he could "buy out" the Union just like another waste
removal company had done when it was organized. 3
After his conversation with Dallas Schnitzius, Young
went over to the garage to pick up his tools. While there, he
spoke to Henry Mink. He told Mink about his discharge
but did not go into details because he was "riled up." He
picked up two vise grip tools at the time and picked up the
third set some time later.
During the week prior to the hearing, Dallas Schnitzius
talked to a number of employees about the case and
Young's union activities. On direct examination, as an
adverse witness under Rule 611 of the Federal Rules of
Evidence, Schnitzius admitted questioning every driver but
three about Young's union activities:
Q. Did anyone other than Young, tell you that
there was an organizational attempt among your
drivers?
A. Yes sir.
Q. Who?
A. After he left.
Q. Who?
A. I would talk to Jack, would talk to Fred, and we
talked to Rick, we talked to them afterwards. I talked to
them last week and they told me they did at the
meeting, because it seemed strange to me that all my
men knew this and yet, nobody had ever said, you
know, that they wanted this.
So, I talked to my people and I asked all of them,
every driver that works for me, with the exception of
these three people, nobody, if they did know about it,
would admit to knowing of it.
Q. When was this, that you talked to them?
A. Last week.
Q. So, you didn't talk to any people prior to last
week?
A. No, in fact, when I talked to Jack, he said, "I
would have told you, but I thought ... ," we went
down and we had lunch and he said that was it.
"I went down for a free lunch and got it," he said.
He testified further that he talked to about six or seven
employees:
Q. What did you ask them?
A. I just asked them, I said, had he made any
contact to them as far as going to a meeting, as far as
wanting to unionize or anything and none of them
knew anything about it.
Q. Did you give them any special instructions, or
warnings or anything?
A. No sir, this was after this thing was over, it
wouldn't have made any difference.
3 Both Dallas Schnitzius and Smith denied they made the statements
above related. Dallas testified that Young first told him he was involved in
union activities at this time.
4 The only interviews in which questions were asked about Young's
union activities were those involving employees Coleman and Pettus.
Coleman actually approached Schnitzius to discuss Young's attempt to
speak to Coleman shortly before the heanng. Coleman thought Young had
said something about him losing his job. Coleman was questioned about this
and was told that "he wouldn't be fired...." The questioning of Pettus
At the end of the General Counsel's case-in-chief,
counsel for the General Counsel sought amendment to the
complaint to add as further unlawful conduct the above
interrogations of employees. I permitted the amendment.
Dallas Schnitzius was called as Respondent's witness and
testified about interviews in the presence of Respondent's
attorneys with employees Pettus and Coleman, among
others, shortly before the hearing in this case.4 The
employees were told they were being asked questions about
the unfair labor practice case and that they might be called
as witnesses. They were also told that their participation
would be voluntary. Pettus and Coleman were told nothing
was "going to happen to them." Pettus and Coleman
substantially corroborated Schnitzius' testimony about
these meetings.
B. Discussion
I. The 8(aXI) violations
The General Counsel alleges that the statements of Jerry
Schnitzius to the Minks that Young had been fired after
telling them that he was organizing for the Union violated
Section 8(a)(1) of the Act. Based on the credited testimony
of the Minks I find that the statement was made. I also find
the remarks clearly susceptible to an interpretation that
there would be reprisals if employees engaged in union
activities as Young did and conclude that those remarks
constitute a threat of reprisal in violation of Section 8(aX)1)
of the Act.
Young also testified credibly, although in a disjointed
fashion, about Dallas Schnitzius' reaction to his union
activities on March 12. 1 find that the thrust of Dallas
Schnitzius' remarks threatened economic reprisals if the
Union came in or if employees chose the Union; i.e., that
employees would be fired, that he would "buy the Union
out," and that he would sell his business. Such threats are
also violative of Section 8(a)( 1).
Finally, there is testimony about Dallas Schnitzius'
interrogation of employees after the issuance of the
complaint herein concerning the litigation and, inter alia,
Young's union activities. Since the testimony is primarily
from Schnitzius himself and his testimony when he first
took the witness stand is different than that when he later
took the stand, I find it difficult to determine what actually
happened. My impression is, however, that his earlier
testimony was candid and open since Schnitzius was
unaware that he may have been violating the law by such
interrogation. When he first testified he said that he
questioned a number of employees - six or seven - about
Young's union activities. His testimony indicates he asked
employees whether Young "made any contact to them, as
far as going to a meeting as far as wanting to unionize." He
also stated that he did not give them any special instruc-
involved primarily the events surrounding his own previous unionization
attempt which Respondent utilized to show that it had not penalized Pettus
for this. Pettus was also asked if Young had contacted him and he said he
had not. The only other interview in which mention was made of Young's
union activities was that of employee Asher. He was interviewed because he
told Schnitzius that he was confused at being contacted by a Board agent.
The only mention of Young's union activity was a parting remark by Asher
that he thought Schnitzius knew about Young's union meeting.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions or warnings. This questioning, which had no lawful
purpose, would tend to inhibit employees in the exercise of
their right to engage in union activities. I thus find the
questioning to be violative of the Act.
The testimony concerning the interrogation of employees
Pettus and Coleman in the presence of Respondent's
counsel convinces me that these were separate and distinct
incidents from those discussed above where there was no
mention of attorneys being present. I find that this
questioning was lawful in that it was for the stated purpose
of preparing the case for hearing, the employees were told
that their participation was voluntary and that there would
be no reprisals. In these circumstances, there was nothing
in the interviews which would suggest an atmosphere of
coercion.5 I therefore conclude that a preponderance of the
evidence does not show that the questioning which in-
volved the two named employees in the presence of counsel
was violative of the Act.6
2. The 8(a)(3) violation
The main issue in the case is whether Young's discharge
was occasioned by his union activity or because, as
Respondent contends, he was recalled by Ford and would
be working two jobs. The issue turns primarily on the
credibility of witnesses and, as I have indicated, I do not
credit the Schnitzius' testimony on the crucial elements in
this case. The evidence clearly indicates that Young was
the sole instigator on behalf of a union among Respon-
dent's relatively small work force; he held a well publicized
meeting to promote unionization which only a few employ-
ees attended. The most telling piece of evidence is the
statement of Jerry Schnitzius to the Minks on March 8 that
Young had engaged in union activities and that Respon-
dent had fired him for this. According to the credited
testimony there was no mention of the Ford job as a factor
in the decision to discharge. Indeed, Jerry Schnitzius
himself on direct examination did not indicate that he
mentioned the Ford job as a factor. The statement as found
constitutes an admission by a responsible management
official - the brother of the president - as to the real
reason for the discharge concurrent with the events as they
occurred. This statement also shows knowledge of Young's
union activities. Independent evidence shows that "Gene,"
a promanagement employee, attended Young's union
meeting, and Schnitzius told Henry Mink it was he who
reported Young's union activity.
The other crucial piece of evidence is Dallas Schnitzius'
outburst of union animus (supra) made to Young when on
March 12 he personally notified Young of his action. This
evidence too is based on credited testimony but for the
reasons I have stated supra at fn. 1, I believe the remarks
were made as Young testified. This evidence confirms
Respondent's union animus as the motivating factor for the
discharge shortly after Young initiated his attempts to
organize the employees.
5 See Johnnie's Poultry Co., 146 NLRB 770, 775 (1964), enforcement
denied 344 F.2d 617 (C.A. 8, 1965).
a The complaint, as amended, alleged unlawful interrogations by Jerry
Schnitzius, apparently by virtue of his question to the Minks "did you hear
what Doug did to us?" It also alleged unlawful interrogation by Dallas
All of this evidence convinces me that Respondent
discharged Young because of his union activities.
At the hearing there was considerable testimony from
Respondent's witnesses that Young was discharged be-
cause he was going to return to Ford and that Young had
been an unsatisfactory employee during his previous
period of employment in great part due to his having two
jobs at that time. In view of my credibility determinations
as set forth supra at fns. I and 3, I cannot accept the
testimony of Respondent's witnesses that Young was an
unsatisfactory employee. Respondent rehired Young readi-
ly in December 1975, which I do not believe it would have
done if Respondent really had the difficulty its witnesses
testified it did with Young at Ford. The Schnitzius brothers
also admitted that, but for the Ford job, Young would have
been taken back after his injury and another driver laid off.
Dallas Schnitzius' testimony is that when he rehired
Young, the latter was on layoff status from Ford and he
told Schnitzius that he would probably not be recalled for
12 or 18 months. He also testified that he rehired Young on
the condition that he would not also work for Ford. But I
cannot believe that if Schnitzius really was concerned
about the Ford job he would have rehired Young at all;
surely Young could not speak for Ford as to when he
would be recalled and Dallas Schnitzius, who had lived
with Young's previous layoffs and recalls, would have
known that the date of his recall was unpredictable.
Finally, as I have indicated above, supra at fn. 1, Dallas
Schnitzius' testimony about being concerned with Young
returning to Ford was contradictory and contrived. For all
of these reasons, I do not credit the Schnitzius' testimony in
this regard and reject Respondent's asserted ground for
discharging Young.
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. By interrogating employees concerning their union
activities and those of Douglas Young and by threatening
employees with reprisals if the Union were to obtain
recognition, Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices violative of Section 8(a)(Xl1) of the
Act.
2. By discharging employee Douglas Young because of
his union activities, Respondent engaged in unfair labor
practices within the meaning of Section 8(aX3) and (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
4. Respondent has not otherwise violated the Act.
Schnitzius, apparently during the outburst of March 12 with Young. I have
found that the thrust of those statements by management officials consti-
tuted threats of reprisal. I do not believe the questioning aspect of the
conversations was significant and shall not find such a violation.
284
MR. REMOVAL, INC.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of interference,
restraint, coercion, and unlawful discharges, in violation of
Section 8(a)(l) and (3) of the Act. This will require
Respondent to cease and desist from the unfair labor
practices found, to offer reinstatement with backpay to
Douglas Young and to post a notice to that effect. In
accordance with the usual requirements, reinstatement
shall be to Young's former position or substantially
equivalent position, without prejudice to his seniority and
other rights and privileges. Young shall be made whole for
any loss of earnings he may have suffered by reason of the
discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned
from the date of the initial discrimination to the date he is
offered reinstatement by Respondent, less net earnings, if
any, during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 7
The Respondent, Mr. Removal, Inc., Indianapolis, Indi-
ana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, support for, or activi-
ties on behalf of, Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discriminat-
ing in any manner against any of its employees in regard to
their hire and tenure of employment, or any term or
condition of employment, because of their union member-
ship, sympathies, or activities.
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
(b) Coercively interrogating employees about their union
activities or the union activities of other employees.
(c) Threatening discharge or other reprisals because a
union might organize Respondent.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Douglas Young immediate and full reinstate-
ment to his former job, or if such position no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for such loss of pay he may have suffered as a result
of Respondent's discrimination against him, in the manner
set forth in the section entitled "The Remedy."
(b) 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 or useful to an analysis of the amount of backpay
due under the terms of this Order.
(c) Post at its premises in Indianapolis, Indiana, copies of
the attached notice marked "Appendix."8 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by an authorized
representative of Respondent, shall be posted immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Respondent shall take reasonable steps to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges unfair labor practices not found herein.
s 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."
285