Mr. Removal, Inc.Download PDFNational Labor Relations Board - Board DecisionsMar 21, 1978235 N.L.R.B. 279 (N.L.R.B. 1978) Copy Citation 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. 282 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. 283 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 Copy with citationCopy as parenthetical citation