North Valley Lumber Sales

National Labor Relations Board - Board Decisions

Jun 3, 1977

229 N.L.R.B. 1209 (N.L.R.B. 1977)

NORTH VALLEY LUMBER SALES
North Valley Lumber Sales, Inc. and Ralph Allen.
Case 20-CA-11480
June 3, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 21, 1977, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a letter brief in support of the Decision.
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 has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order except
as modified herein.
The Administrative Law Judge ordered that Ralph
Allen, discharged in violation of Section 8(a)(3) of
the Act, be reinstated to his former job because
"there does not appear to be any possibility of the
existence of a substantially equivalent job." We view
the determination of whether a substantially equiva-
lent job exists as one that may be appropriately left
to the compliance stage of the proceeding. We
therefore order, in accordance with standard proce-
dure, that Allen be reinstated to his former job or, if
that job no longer exists, to a substantially equivalent
one.3
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 as
modified below and hereby orders that the Respon-
dent, North Valley Lumber Sales, Inc., Redding,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order, as herein
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Ralph Allen immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent job, without
prejudice to his seniority or other rights and
privileges, and make him whole for any loss of pay
suffered by him by reason of his unlawful construc-
229 NLRB No. 178
tive discharge on May 7, 1976, in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
291-293(1950), together with 6-percent interest there-
on in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I In that portion of sec. Ill of the Administrative Law Judge's Decision
entitled "Resolution of the Issues," immediately following the second
quotation from Stephens' testimony, the Administrative Law Judge
identified Moss as asking Moss a question. Based on the record it is obvious
that the Administrative Law Judge intended to indicate that Moss testified
he had not asked Stephens a question, not that he denied questioning
himself.
2 The 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 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 Chairman Fanning would adopt the Administrative Law Judge's
recommended Order in full inasmuch as fn. 12 of his Decision construes
Allen's reinstatement as not prohibiting Employer at some future date from
requiring Allen to operate his truck out of Redding rather than Sacramento
if required for purely economic reasons.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate employees
about their intentions relating to General Team-
sters Local Union No. 137, or any other labor
organization.
WE WILL NOT unlawfully create the impression
of surveillance of activities by or on behalf of said
Union, or any other labor organizations.
WE WILL NOT discriminatorily change the terms
and conditions of employment of employees to
more onerous ones because of their exercise of
rights to which they are entitled under a collec-
tive-bargaining agreement we have with said
Union, or any other labor organization.
WE WILL NOT constructively discharge employ-
ees by changing the terms and conditions of
employment of employees to more onerous ones
because of their exercise of rights to which they
are entitled under a collective-bargaining agree-
ment we have with said Union (or any other labor
organization) and/or under our customary em-
ployment practices.
WE WILL NOT in any other manner coerce,
restrain, or interfere with employees in the
exercise of their rights under Section 7 of the
National Labor Relations Act.
WE WILL offer Ralph Allen immediate and full
reinstatement to his former job or, if that job no
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights
and privileges.
WE WILL make Ralph Allen whole for any loss
of pay suffered by him by reason of his unlawful
constructive discharge on May 7, 1976.
NORTH VALLEY LUMBER
SALES, INC.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge: Based on
a charge filed on May 18, 1976, by Ralph Alien, an
individual, the complaint herein was issued on June 29,
1976. The complaint alleges that North Valley Lumber
Sales, Inc., hereinafter referred to as the Respondent or the
Company, violated Section 8(a)(1) and (3) of the Act.
Respondent, by its answer, denies that it engaged in
conduct violative of the Act as alleged.
Pursuant to notice, a hearing was held in Redding,
California, on October 19 and 20, 1976, before me.
Appearances were entered on behalf of the General
Counsel and Respondent, and briefs were timely filed by
said parties on November 26, 1976.
Based on the entire record in this proceeding and my
observation of the witnesses as they testified, I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent, a California corporation with an office and
place of business in Redding, California, is, and has been at
all times material herein, engaged in the nonretail sale of
lumber. During the past calendar year Respondent, in the
course and conduct of its business operations, sold and
shipped goods, materials, and supplies valued in excess of
$50,000 directly to customers located outside the State of
California, and purchased and received goods, materials,
and supplies valued in excess of $50,000 directly from
suppliers located outside the State of California.
As is admitted by Respondent, it is, and at all times
material herein has been, an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
As is admitted by Respondent, General Teamsters Local
Union No. 137,' hereinafter called the Union, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act.
As is admitted by Respondent, International Woodwork-
ers of America, AFL-CIO, Local 3-433, hereinafter called
the Woodworkers, is, and at all times material herein has
I Although it appears from the transcript of the testimony of Frank
Wood, its business agent, that the number is 136, the complaint and both
briefs of the parties refer to the Local as No. 137. and so do the Union's
contracts with Respondent.
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issues
The issues raised by the complaint and answer are:
1. Whether or not Respondent violated Section 8(a)(1)
of the Act by the following alleged conduct (as set forth in
par. VI of the complaint): (a) unlawful promises of benefits
on or about April 3; (b) unlawful interrogation on or about
April 6; (c) unlawful promise of benefits on or about April
6; (d) creating the impression of unlawful surveillance on
or about April 10; (e) and (f) unlawful interrogation on two
occasions on or about April 28.
2. Whether or not Respondent violated Section 8(a)(3)
and (I) of the Act by discriminatorily assigning Ralph
Allen more onerous working conditions on or about April
28, and by constructively discharging Allen on or about
May 7.
Background Information and Undisputed Facts
Respondent is a lumber broker which has been engaged
in the purchase, sale, and transportation of lumber and
lumber products in California and several other western
States since 1964. Its office is in Redding, but it also
maintained offices in Fresno and Sacramento until they
were closed in 1972 or 1973. There are apparently six
owners of the corporation including Darrell Moss, an
admitted supervisor who, during the time material herein,
served as vice president and dispatcher and was on the
board of directors. During the time material herein,
Respondent had a fleet of eight trucks, and while
Respondent in its brief claims it had seven drivers, General
Counsel states in his brief that it had six. It appears from
the dispatch documents that one driver, Mervin Barker,
worked in April 1976, but had no dispatches in May 1976
(which, it is assumed, would account for the above
disparity in the figures). All of the drivers except Allen
operated out of Redding. Allen, admittedly Respondent's
most senior driver, was originally employed in 1970 and
was permitted from the start of his employment to operate
his truck out of the Sacramento area where he lived. It is
noted that Sacramento is 162 miles from Redding. 2
Each driver was assigned a particular truck and trailer,
but the trucks and trailers varied in type. It appears that, as
far as practicable, Respondent dispatched drivers accord-
ing to seniority, subject to the type of equipment needed
(truck and trailer) for the particular load and in Allen's
case apparently to some extent also subject to the places of
pickup and delivery of the loads to be handled.
Up to May 1975, Respondent's drivers had their truck
maintenance and repair work done at any location they
desired and turned the bills into the Company for payment.
Sometime in May 1975 Respondent hired Al Williams, a
mechanic, who set up a garage shop for the Company in
Redding, approximately 2 miles from Respondent's office.
2 According to Rand McNally's Highway Guide (I 1973).
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NORTH VALLEY LUMBER SALES
It appears that Respondent was able to cut some of its
expenses in maintaining its trucks by buying parts and tires
in bulk at wholesale prices and by paying less money for
mechanic's labor, since it paid Williams at a monthly
salary.
Respondent and the Union were parties to a collective-
bargaining agreement which was executed on August 1i,
1975, and which had an expiration date of July 31, 1976.
Respondent's collective-bargaining agreement with the
Teamsters contained provisions for vacations, prorated
vacation pay upon severance, a wage scale, and a provision
requiring Respondent to make monthly contributions into
the California Teamsters Health and Welfare Trust on
behalf of employees in the unit covered by the agreement.
Respondent's drivers, however, had the option of partici-
pating in either the Teamsters insurance plan or in an
insurance plan offered by Respondent, despite the lan-
guage of the said agreement.3 The collective-bargaining
agreement did not contain a union-security clause.
In November 1975, trustees of the California Teamsters
Health and Welfare Trust notified all participating employ-
ers, including the Respondent, that premiums for employ-
ees covered by the plan would be increased 15 percent, and
that employers would also be required to pay a double
premium for the following month of December. Moss was
informed of this double premium in November by Lyle
Dillon, Respondent's controller, who is an admitted
supervisor. Moss was uncertain of the legality of the double
premium and submitted Respondent's collective-bargain-
ing agreement to its employer association for review. In
January 1976, Moss was informed by counsel that the
double premium was lawful, and that Respondent was
bound to its collective-bargaining agreement with the
Teamsters until July 31, 1976. At that time at least four of
Respondent's drivers were covered by the Union's insur-
ance program, but Allen, who had a withdrawal card from
another local of the Teamsters and was not a member of
the Union, was covered by the Company's insurance
policy.
Resolution of the Issues
It appears that Moss was considerably disturbed by the
double December premium and the substantial monthly
increase. He testified that "starting back in December,
January, February, I told, I think, damn near every one of
them what had happened," but that it was not of any
concern for them "because they were not paying."
It appears that sometime in March the drivers became
dissatisfied with their terms and conditions of employment,
particularly with respect to their wages, and also with
respect to the service their trucks received at the Compa-
ny's garage. At or about this time, George Cornoyer
contacted the Woodworkers and asked a representative if
he would be interested in talking to the drivers and he
answered in the affirmative. Cornoyer then called Allen
and told him about it. Allen testified that he called a
representative of the Woodworkers and he assured Allen
I Frank Wood. the Union's business agent, testified that any employee of
Respondent could participate in the Union's insurance plan whether a
member or not. but that the Union could not force the Respondent to pay
the premiums if the employee was not a member.
that representation by that union was possible and that he
would notify him when there would be a meeting between
Respondent's drivers and a representative of the Wood-
workers. Cornoyer arranged for the meeting to be held
April 3, but it was never held because Moss called a
meeting of the drivers for that day.
It appears from the credited testimony of Moss that the
drivers had been seeking a meeting with him but he kept
putting it off because he was busy with setting up another
company to engage in the retail sale of lumber.4 It further
appears from his credited testimony (which is uncontra-
dicted) that just prior to the meeting on April 3 Cornoyer
warned him about the drivers' interest in the Woodwork-
ers. It also appears that the drivers assumed that the only
arrangement between the Respondent and the Union
consisted of the insurance program, that they were not
aware of the fact that a collective-bargaining agreement
also existed. It is noted, however, that a majority of the
drivers were members of the Union.
Although there is testimony with respect to statements
made by Moss in an informal conversation with some of
the drivers prior to the meeting on April 3, there is no
allegation in the complaint of an unfair labor practice with
regard thereto, and it cannot be said an issue with respect
to said statements was fully litigated. Moss did testify as to
statements he made to some of the drivers as follows:
A. I told the drivers that because I had been
planning on giving them more or less graduated pay
raises, and we was just about ready to initiate one,
whenever I got hit with this double payment in
November.
Now, whenever this double payment came into
effect, it just absolutely blew my mind. I did not know
anything about it, and here comes a bill for something
like $204 per man.
I told the drivers - in fact, I told a couple of them
on a couple of different occasions - that if this
insurance program, if they could get this thing straight-
ened out with the Teamsters so that we could know
what our costs were, we would eventually graduate
them up and probably get them to that Hympom wage
scale, if possible.
Q. How would you do that? Through negotiations
with the Teamsters?
A. Probably; some way.
Q. Did you tell them that?
A. Yes, I did.
Q. How did you say it?
A. The main thing was, if I could get this insurance
thing squared away, we could go from there.
However, although this testimony is credited, it is not clear
when he made the above-quoted statements to the drivers.
In my opinion said statements do not constitute restraint,
coercion, or interference within the meaning of Section
8(a)(l) of the Act. It is important to note, however, that the
above-quoted testimony of Moss discloses that he was very
4 Moss Lumber Company. which was incorporated on February 15.
1976, by Moss and other owners of Respondent. Moss Lumber. it appears,
buys 80 to 95 percent of its lumber from Respondent. At the time of the
hearing. Moss devoted all of his time to Moss Lumber.
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much disturbed by the increased cost of the Union's
insurance program.
As to the meeting on April 3, it is alleged that
Respondent "made promises of benefits to employees to
induce employees to withdraw their membership in the
Union." It should be noted, at this point, that other than
with respect to the matter of insurance costs Respondent
enjoyed an amicable relationship with the Union. It
appears that the Union did not press the Respondent to
increase any economic benefits in negotiating the 1975-76
agreement but rather accepted Respondent's then current
terms and conditions of employment. Moreover, it is also
apparent that the Union was so inactive in its administer-
ing the contract that the employees were not even aware
that one existed. Thus, it appears unlikely that Moss would
seek to break its relationship with the Union knowing that
the drivers were thinking of obtaining representation from
the Woodworkers. It is noted that at the meeting,
according to the credited testimony of Hugh Stephens, a
witness called by General Counsel, Moss said he under-
stood that the Woodworkers had been contacted and that
Moss then stated the Company had a binding contract with
the Union.
According to the testimony of Allen, Moss started the
meeting on April 3 by stating that he heard the drivers had
a bunch of gripes. It appears that the chief gripe related to
wages, and that Moss pointed out that the Company could
not afford to give raises because the Union had increased
the Company's costs by its increase in the assessment for
insurance, and that the railroad rates had a deleterious
effect on the transportation of lumber by trucks.
Allen testified as to what was said as follows:
Q. I think you mentioned that there were some
discussion about raises and whether or not North
Valley could increase the wages of its drivers at this
meeting?
A. Yes. I believe it was Hugh Stephens who said,
"Now, let us discuss the money situation, the money
end of it."
Darrell said, "Guys, I tell you right now North
Valley cannot afford to pay anymore."
Then at that point I said, "Well, Darrell, for $4.65 an
hour, you run up and down the road, you have
expenses on the road, and its getting very difficult to
pay your bills." I said, "It is almost impossible to make
a living at that wage."
Q. Did Mr. Moss indicate at any time when North
Valley would be able to afford to pay its drivers
increased wages?
A. He said later on maybe they could, but he said
at the present time there was something to do with the
railroad, which I don't understand. He said something
5 He testified at one point as follows with regard to statements made by
Moss:
THE WITNESS: He said there would be no union, and no union talk.
He said, "If any of you guys don't like the way things are here on the
job than you get the hell out."
However, the above-quoted statements he attributed to Moss cannot be
relied on for a finding of an unfair labor practice as urged by General
about it was that they could haul the lumber cheaper,
the rates were cheaper by rail then it was on the
trucking end of it.
Q. Did Mr. Moss indicate anything about when the
contract with the Teamsters would expire in relation to
when the employees might receive a raise?
A. Yes. He said that the Union contract was up
July 31, 1976, and he says that he didn't know - he
couldn't say anything.
He said, "Now, I cannot tell you guys to get out of
the Union because I had my attorney to go over this
contract with me and I am bound to this contract until
it expires."
He said, "I cannot tell you guys to get out of this
Union."
So, at that point, George Cornoyer says, "Can we
expect anything if we get out of the goddam Union, just
get completely out of it?" He said, "We don't need it
because it is not doing us any good."
Q. Did Mr. Moss have anything to say to that?
A. Yes. He said, "Guys, once again, I tell you, I
cannot say anything here. That will get my ass in
trouble. My attorney told me not to say anything that
would jeopardize me."
Stephens testified as follows:
He [Moss] said, "All right. Before we go into more
money, there are five members in here that are still on
the Teamsters insurance that we don't agree with, and
we won't talk about anything pertaining to more
money. We won't say anything about the insurance, I
won't say anything about the Union -" which he
didn't. He didn't, to my knowledge, say one word, pro
or con, against the Union, in any form, at that meeting.
He just said there would be no raise, nothing until after
July 31 when things were resolved.
Stephens further testified as follows:
THE WITNESS: There was more talk about money,
whether or not we could expect anything after July 31,
and he didn't commit himself one way or the other.
Kenneth Peterson, another driver called by General
Counsel, testified that Moss said he was not going to
discuss wages as long as the Union was involved, but he
also testified Moss asked if the drivers would be willing to
drop the union insurance.
Cornoyer testified about meetings with Moss but his
testimony is confused and he, himself, testified that his
recollection was very poor, so that little or no reliance can
be placed on much of it. 5
Counsel, since, absent any indication in what context they were made, I
cannot make a determination of what Moss actually said or what the other
employees understood Moss to have said. It is noted in his cross-
examination Cornoyer admitted that Moss said he could not talk about the
matter of his (collective-bargaining) obligations to the drivers because they
were represented by the Teamsters. Moreover, it would appear that had
Moss made such a drastic statement (quoted hereinabove), it would have
been recounted by other witnesses. The only other testimony which is
somewhat related to the quoted testimony is that of driver Myron Bloom,
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NORTH VALLEY LUMBER SALES
Moss testified to what he said at the meeting: that he
informed the drivers he could not give them a raise because
of the increased cost of union insurance and competition
from the railroad; that he told the drivers he "would
appreciate it very much if they would go to the Teamsters
Union and try and get this health & welfare agreement
straightened out so that we could know where our costs are
going to be"; that the Company had an agreement with the
Union until July 31; that two drivers asked him if they
could get better treatment after July 31 if they dropped out
of the Union; and that he replied, " 'I cannot say at this
time' period." Moss later testified that he did tell the
drivers that he would take up the matter of a raise with the
"board" and let them know.
There seems to be little or no conflict in the above-
summarized testimony about the meeting on April 3.
Considering all of said testimony, I am of the opinion that
the General Counsel has failed to prove by a preponder-
ance of the evidence the allegation that on April 3 Moss
promised benefits to employees in order to induce them to
withdraw their membership in the Union.
It is alleged that on or about April 6 Moss unlawfully
interrogated an employee and promised him benefits to
induce him to withdraw from the Union. According to his
brief, General Counsel apparently relies, in support of this
allegation, on Stephens' testimony of a telephone conversa-
tion which he testified he had with Moss "two or three
weeks" after the meeting of April 3. According to Stephens,
Moss called him at the garage office and severely
admonished him for his admitted failure to call in for
instructions when he should have. Stephens' testimony
continues as follows:
Q. Do you recall anything else being said during
this telephone conversation?
A. Yes. He asked me, come July 31, if I was going
to attempt to break it off in his ass, and I said how can I
break anything off in anybodies ass?
He said, "Well, I am open for it. Will you promise
me that you won't?"
I said, "My fight is with the Union and not with the
Company."
JUDGE GILBERT: Who said this?
THE WITNESS: I said this to Darrell. I said my fight
was with the Union for lying to me and I had nothing
against Moss, or the Company, at all as to what was
going on. My fight was with the Union.
Q. What were you and Darrell discussing when you
said this?
A. It wasn't said, but I assumed that it was the
winding up of the contract.
Q. Was there any talk about insurance rates?
A. Not that I recall - wait a minute, yes, I said I
was going to have to stay in the Union irregardless of
what way we went, whether our insurance went with
the Company, or what it did, because I had belonged to
it for about 25 years and I could not afford to drop it
on account of our pension plan if I had any left. That I
called by Respondent, who testified that Moss said he could not afford to
give a raise and that if the drivers "didn't like to work for that type of
money" they were "welcome to go someplace else to work." Moreover, there
was going to stay in irregardless as a member whether
the Company did or not.
* * .
Q. Do you recall that there was any discussion
about the wage scale of another trucking firm in the
Redding area?
A. Yes; he says, "After we get resolved and get rid
of this insurance premium, I fully intend to come up
with a wage scale the same as Hympom Lumber."
Q. Can you recall whether Mr. Moss said anything
in reference to yourself, Ralph Allen, and George
Cornoyer?
A. Yeah; we was branded as trouble-causers, the
three of us. But which conversation that happened in, I
don't remember.
JUDGE GILBERT: Just tell us, what did he say.
A. That the three of us were trouble-causers,
George and I and Ralph.
Q. Did he say why?
A. No, he did not.
Moss was questioned about the telephone conversation
to which Stephens testified and categorically denied asking
Moss the above-quoted obscenely worded question, but
admitted that he talked to the drivers, apparently including
Stephens, about straightening out the insurance rates
before he could raise wages (as indicated in his credited
testimony about "Hympom" rates quoted above). Moss
was not questioned about the testimony that he referred to
the above-mentioned three drivers as troublemakers.
Stephens was a convincing witness with respect to his
above-quoted testimony and therefore said testimony is
credited. While the above-mentioned obscenely worded
question, of itself, appears to be too ambiguous to be
meaningful, it appears from the context of Stephens'
testimony and the record that it was reasonably understood
by him to refer to an anticipated failure by Stephens to
support the Company in its attempt to straighten out the
insurance rates and a future refusal to exercise the option
to take the Company's insurance if the union rates were not
reduced. In view of the graphic wording of the question
which clearly disclosed a strong animus against a failure to
support the Company's position, I am of the opinion that it
constituted unlawful interrogation of his future intentions
with respect to his protected right to be covered by the
Union's insurance program. Thus, I find that by such
interrogation Respondent violated Section 8(aX)() of the
Act.
As to the second portion of the above-quoted testimony
of Stephens referring to the Hympom wage rate, I have
credited Moss' explanation of what he said with regard
thereto (which is quoted hereinabove) and I find that the
General Counsel has failed to prove by a preponderance of
the evidence that Moss, in stating that raises might be
is no allegation in the complaint which can be said to relate to the above
statements Cornoyer attributed to Moss.
1213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forthcoming if the Company could straighten out what it
considered excessive insurance rates, made a promise of
benefits to induce employees to withdraw from the Union.6
As to the third portion of the above-quoted testimony of
Stephens referring to "trouble-causers," since I am unable
to glean from the record what activities the three-named
employees engaged in, or were suspected of engaging in,
which caused Moss to label them as troublemakers, I
cannot find that the label was predicated on their having
engaged in protected activities.7
As to the allegation of creating the impression of
surveillance on or about April 10, it appears that General
Counsel relies on testimony that at either the meeting on
April 3 or at a subsequent meeting Moss called with the
drivers, he made a reference to his relationship with Frank
Wood, the Union's business agent. Cornoyer testified as
follows:
Q. (By Mr. Ko) Can you recall if at any of these
meetings Mr. Moss made any reference to Frank
Wood?
A. Yes, there was at one of these meetings, but
again I am not certain which meeting it was said.
Mr. Moss told us that he lived next door to Mr.
Wood and that we wasn't pulling no wool over his eyes
at all. He knew what was going on.
Mervin Barker, a driver called as a witness by Respondent,
verified that at one of the meetings Moss did say that he
lived next to Wood, but that he could not remember what
Moss said about it.
Moss testified as follows:
Q. (By Mr. Smith) Did you tell the employees that
Frank Wood was a neighbor, and as a result, you knew
all that was going on with the Union, or with the
employees?
A. I did not. Frank Wood is a neighbor of mine. I
have never been in his home.
It is noted that one of Respondent's witnesses confirmed
that Moss made a statement that Wood was his neighbor.
Also, Cornoyer was a convincing witness as to this
testimony. Therefore, his testimony is credited. While the
record does not reveal that there was any union activity
going on at the time which the employees could have been
fearful that Respondent was being informed of, neverthe-
less, Moss' statement implied that Wood was an informant
and it is found that such a statement would tend to
restrain, coerce, and interfere with employees in their
relationship with the Union in violation of Section 8(aX)(1)
of the Act.
With respect to the two allegations of unlawful interroga-
tion on or about April 28, it appears that they relate to
telephone conversations Allen had with Dillon and Moss
on that date. Allen credibly testified that on April 6 he
rejoined the Teamsters by becoming a member of the
6 While I do not rely on it as a basis for arriving at this conclusion, it is
noted that, in the contract that was subsequently negotiated, the matter of
insurance rates apparently was straightened out.
7 As to the reference to Allen, there is no basis for finding that the
Respondent was aware of, or suspected, his having engaged in activities on
Union; that he had been covered by the Company's
insurance but discovered that the Union's coverage was
better and "went under" the Union's plan. He further
credibly testified that he called Dillon from his home in
Sacramento on April 28. His testimony as to their
conversation is as follows:
A. Well, I told him, "I meant to call you before to
tell you, in other words, so you wouldn't be paying two
premiums. In other words, the Teamsters wouldn't
come up and say, 'Hey, how come you haven't been
paying on this guy?' "
I said, "I failed to tell you and I am sorry but I have
changed insurance. I have got reinstated with the
Union, and I am now covered through the Teamsters
Union insurance."
He says, "What do you mean? You went down and
joined the Union?" He says, "The way I hear it, all the
guys are getting out of the Union."
I said, "Well, Darrell indicated that at the meeting
but, as far as I know nobody is getting out of the
Union."
I said, "Does Darrell think that he can just go down
and cancel out the insurance, or cancel out the
agreement with the Union, without the employees even
having anything to do about it?"
Dillon says, "Well, the way I heard it, they were
going to drop the Teamsters insurance, and that they
were going to go down and try to get some kind of
contract, or some agreement, with the Woodworkers
Union."
Q. All right.
A. That is when I asked him, I said, "Dillon, does
Darrell think that he can just go down and say that I
want out of this Union, and go to the other one and say
I want in that Union without the employees even
having any knowledge of the transaction?"
Q. Did Mr. Dillon ask you any questions during
this telephone conversation?
A. Yes, he did. He said, "It sounds to me like you
are doing this out of spite."
I said, "What do you mean spite?"
He says, "Well, all of the guys are getting out of the
Union and here you go down and join it." He said,
"What is the deal?"
I said, "I don't understand what you are talking
about as far as being out of spite. It is better insurance
and that is the reason I got into the Union."
Dillon testified that Allen began the conversation by
complaining about the loads he was getting. Dillon's
testimony continues as follows:
A. He stated that Connecticut General's health
plan was no good, and he stated that he had joined the
health & welfare plan with the Redding Teamsters
Local.
behalf of the Woodworkers and, furthermore, it appears that the statement
was made prior to April 28, the date when, as set forth hereinabove, Allen
informed Respondent that he joined the Union and exercised the option to
be covered under the Union's insurance plan.
1214
NORTH VALLEY LUMBER SALES
Q. What did you say to him?
A. I asked him why, and I stated that we had had
problems with the plan.
I told him that two of the five drivers that were
covered by the plan had asked to get out of the plan. I
stated that the premium on that plan at that particular
time was $102.50, and that the premium on the
Connecticut General was $70-odd.
I told Ralph I had had problems with the plan.
He told me that he would have a 90-day wait, since
he had joined or was going to join this Teamsters health
& welfare plan, and asked me to check into the fact,
because I told him I felt 90 days was an unusually long
wait, and that our Connecticut General would be an
immediate coverage, transferring from one plan to
another, with the usual conditions they set forth or at
most a 30-day wait.
Ralph asked me in the end to check with the Union
to see if that was right, regarding the 90-day wait.
I told him I would, but I also told him I would have
to look into the possibility of double premiums,
Connecticut General and the Teamsters health &
welfare, which could arise from this 90-day wait.
The Company would furnish a health & welfare
plan, but I would have to look into this problem which
had been posed to me.
Q. What did he say?
A. He asked me if I would call the Union as
regards the 90-day wait.
Q. Did you say anything further to him?
A. Yes.
Q. What did you say?
A. The conversation came back to loads, and
Ralph stated that he needed the Union for his bread-
and-butter.
I had been possibly misled by the conversation,
thinking that he had a legitimate squak or gripe against
Connecticut General over a possible non-payment of
bill. That is when I told Ralph that I felt he had joined
the Teamsters welfare plan more for spite, inasmuch as
it was considerably more money.
Although there is a considerable variation in their testimo-
ny there is no conflict of material substance. An analysis of
their testimony affords no support for a finding of unlawful
interrogation, as alleged in the complaint. Allen volun-
teered the information that he had joined the Union and
elected to be covered by its insurance plan. The fact that
Dillon asked him if he did it "out of spite" does not to my
mind warrant a finding of unlawful interrogation with
respect to protected activities within the meaning of
Section 8(a)(1) of the Act.
Allen credibly testified that about 15 minutes after he
talked to Dillon he received a call from Moss. Allen
testified that Moss told him that Respondent had decided
that it would be "economically better" to bring his truck
back up from Sacramento to Redding, that it could be
operated "cheaper" out of Redding than out of Sacramen-
to; that he asked Moss if he had any records to support his
8 Moss was not convincing in this testimony of this coincidence.
Moreover, at another point he testified that prior to Apnl 28 he had decided
claim that it would be cheaper to operate the truck out of
Redding, and Moss replied that he would have the figures
in 3 weeks; that he told Moss that because of this decision
he (Allen) would have to move up to Redding, to which
Moss responded that he (Allen) would not want to come up
to Redding, he would not want to work for him (Moss),
and if he came up to Redding, there would be no loads for
him; and that Moss then told him to bring the truck back
up to Redding the first thing Monday morning (May 3).
Moss testified that on April 28 he was talking with
Williams, the mechanic, and that they were "probably"
talking about trucking costs; that it "came into the
conversation about moving" Allen's truck back to Redding
and "when we were going to physically do it"; 8 that Dillon
came up to them "all in a huff' and complained that he did
not "have to take that kind of crap from these truckdriv-
ers"; that Dillon was "hot under the collar about Ralph
[Allen] calling him and jumping on him about how poor
our insurance was and how he planned on getting into the
Teamsters program"; and that is when he "decided to
make the call to bring the truck back" from Sacramento to
Redding.
Moss testified to his telephone conversation with Allen
as follows:
A. I told Mr. Allen that because of economic
reasons we were moving the truck back to Redding.
Q. And what did he say?
A. He told me that - I think he asked me, "Why
are you doing this?"
I said, "We feel that we can operate the truck
cheaper in the Redding area."
Then he said something to the effect, "Why don't
you fire me?"
I said, "I don't want to fire you."
Q. Then what did you say?
A. I said, "All I want to do is move the truck back
to Redding."
Then he said something to the effect, "I will come
back to Redding with the truck, but I am going to cause
you more troubles than you can handle."
Q. What did you say to him?
A. I said, "Well, Ralph, I hage [hate] that you feel
that way, but I have to move the truck back to
Redding."
Then he asked me, "When do you want the truck
back in Redding?"
I told him, next Monday morning.
Q. What else, if anything, did you discuss in that
conversation?
A. That was just about the extent of it.
Moss further testified that there was no mention of
figures in their conversation and denied that he told Allen,
"You don't want to work in Redding," that he said that if
he (Allen) came to Redding there would be no loads for
him, and that he moved the truck back to Redding because
of Allen's "activities on behalf of the Teamsters or any
other union."
to move the truck back to Redding and had planned to notify Alien at the
end of the week (Fnday, April 30).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There does not appear to be anything in the testimony
with regard to the conversation between Allen and Moss
on April 28 which would support the allegation that Moss
unlawfully interrogated Allen, and there does not appear to
be any other incident in the record which can be related to
said allegation.
The remaining issues in the case are whether or not the
ordering of Allen's truck back to Redding on April 28 was
unlawfully motivated, and whether his ceasing to work for
Respondent on or about May 7 was the result of an
unlawful constructive discharge.
An important factor in resolving said issues is whether or
not Allen's testimony as to his conversation with Moss on
April 28 should be credited. Allen was a convincing witness
in giving the testimony, and the surrounding circumstances
lend strong support to his credibility. The record clearly
discloses that Moss was greatly disturbed by the increase in
the cost of the Union's insurance program and strongly
urged the drivers to put pressure on the Union to lower the
cost by asking them to do so and informing the drivers that
their getting a raise (which they were strenuously seeking
and which he said he had previously planned to give them)
was contingent on a lowering of said cost. While I do not
find there is sufficient credible evidence to find that Moss
urged them to withdraw from the Union in order to relieve
Respondent of the burden of the Union's insurance
program which a majority of the drivers had elected to be
covered by (instead of the Company's policy), it is inferred
that they must have reasonably understood that their said
election was an obstacle to their receiving a raise. It is
evident from the record that Moss was greatly angered
upon receiving the news from Dillon that Allen, who had
been covered under the Company's policy, had joined the
Union and switched to coverage under the Union's
insurance program, thereby increasing Respondent's insur-
ance costs and Moss immediately called Allen to bring his
truck to Redding. This additional factor, when considered
in the light of other circumstances, which are outlined
hereinbelow, leads me to the finding that Allen's testimony
as to his conversation with Moss should be credited.
The other circumstances are summarized as follows: (1)
Allen was the senior driver and was considered not only to
be an excellent driver, but apparently he also kept his truck
in excellent condition. (2) Allen lived in the Sacramento
area and for approximately 6 years it had been the
Company's policy to have him operate his truck out of that
area. It must have been evident to Moss that requiring
Allen to operate his truck out of Redding would place
Allen in the position of making a choice of several
extremely onerous options: of moving his home to
Redding, commuting to and from Redding, or maintaining
a place to live in Redding besides his home in the
Sacramento area. (3) Despite this, Moss never notified
Allen prior to April 28 that the removal of the truck to
Redding was being contemplated, let alone discussing with
him the reasons for contemplating such action. (4) In his
testimony, as noted above, Moss claimed he planned to
notify Allen on Friday (April 30) that his truck had to be
g It appears, however, that this estimate was based on what Dillon told
him, that Dillon never testified to this matter, and there was no
documentary evidence introduced to support it.
moved to Redding. However, he further testified as
follows:
A. Mr. Dillon told me that Ralph Allen had called
him up and jumped all over him about our insurance
program, and he had said something to the effect that
he was going to get into the Teamster health & welfare
program.
Q. And that is the point you decided you might as
well move the truck back?
A. Right.
(5) This impulsive action leads me to infer that he was
angered by Allen's action, and that his anger precipitated
the order to bring the truck to Redding and caused him to
state to Allen the unfavorable conditions under which
Allen would work if he came to Redding (as testified to by
Allen). (6) Other factors (which are set forth hereinbelow)
are the unpersuasiveness of the testimony as to the
economic reasons for moving the truck and the treatment
Allen received with respect to dispatches after he reported
to Redding.
Following is a consideration of the economic reasons
advanced for moving the truck. Moss testified that the
Sacramento office was closed in 1972 or 1973 and shortly
thereafter the Company was down to one account in the
area (The Frank Reed account) and that "over the past, up
until probably the last year his [Frank Reed's] account has
diminished, I would say, as much as 50 percent of the loads
that normally would have gone in there." 9 It is noted that
when questioned on cross-examination, prior to Moss'
testifying, Allen testified that as far as he knew the
deliveries to Reed "had not dropped off," and that about
half of his pickups and deliveries were south of Sacramento
(which was not contradicted). Another economic reason
advanced was that the Company would save money by
having the truck in Redding so it could be serviced in its
own shop. However, Allen convincingly testified, and his
testimony is credited, as follows:
Q. Can you tell me how many times you have had
your truck serviced, completely serviced, at the North
Valley truck shop in Redding, California?
A. Between May of '75 and May of '76 there was
six complete servicings did on the truck.
Q. And how many services did you have done on
the road?
A. One. And the reason for that was, I was - Al
was overhauling one of the trucks and he said he would
be tied-up for about a week, and he told me to take it to
Sacramento and have it done, because he didn't want
the truck to get that many miles on it before it was
serviced.
Q. During this time had Mr. Williams indicated to
you that he wanted you to have all your complete
service done in Redding?
A. Yes, he did.
Q. Had you -
A. He told me to have my lube jobs - he says, "It
only costs $8 to lube it on the road." In other words, the
1216
NORTH VALLEY LUMBER SALES
station I usually had it lubed at in Sacramento only
charged $8 for just a straight lube, and it only takes
those guys maybe 30 minutes or something like that to
do it, so you are not really tied-up.
He said, "I can't do that as cheap as they do, because
it takes me anywhere from an hour to an hour and a-
half to service a truck." He said it would cost him a lot
more to do it than for me to do it on the road, so for
just a straight lube job not to bother.
Also, Moss testified that the Company knew for 2 or 3
years that Allen's truck was the most expensive to operate,
but it is noted that it took no action to move the truck to
Redding until April 28, immediately after Moss learned
that Allen had switched to the Union's insurance plan. I
am persuaded from the record that, while some thought
might have been given by management to the possibility of
moving the truck to Redding and that there were some
economic reasons for considering doing so, the decision to
do so was not made until Moss learned of Allen's switch of
insurance.' This inference is predicated on the abruptness
of the order to Allen without any prior consultation with
him about it or even any prior notice to him that the move
was being contemplated, and the findings of fact set forth
hereinabove as well as hereinbelow.
Thus, it is found that the ordering of Allen's truck to
Redding was substantially motivated by Allen's election to
join the Union and be covered under the insurance plan
provided for in the collective-bargaining agreement, and,
consequently, said order is violative of Section 8(aX3) and
(1) of the Act. It is further found, based on the credited
testimony of Allen as to his conversation with Moss on
April 28, that Moss must have expected him to quit his job
because of the onerous burden that would be placed on
him to operate his truck out of Redding, and, when he did
not do so, Moss threatened him with making it economical-
ly undesirable for him to try to operate out of Redding. It
appears that this threat was put into effect when Allen
returned to Redding with his truck.
According to Allen's credited testimony, Moss ordered
him to have his truck in Redding the "first thing Monday
morning." Thus, Moss knew as early as the preceding
Wednesday (April 28) that Allen and his truck would be
available for dispatch on Monday (May 3). Moreover, the
record discloses that Moss was aware as early as 7 a.m. on
that Monday that Allen had complied with his order to be
in Redding. Nevertheless, Allen was not given a trip for
that day, although other drivers junior to him were given
trips that day, despite the fact that the Company followed
the practice, where it was practicable, to dispatch drivers
on a seniority basis. Moss testified as to why Allen was not
given a trip for that day, but he was an unconvincing
witness with respect thereto.
Allen was given a load on Tuesday (May 4), but it
involved a round trip of only approximately 120 to 140
miles, while another driver, junior to Allen, was given a
much more desirable load to Los Angeles (in that it was
much longer and, thus, more profitable to the driver). No
10 I do not credit Moss' testimony to the effect that the decision had been
made previously and that he planned to notify Allen at the end of the week.
credible testimony was offered to explain why the dispatch-
es were not reversed.
On May 5, Allen picked up a load in Redding, to be
delivered to Fresno. Because his load could not be
unloaded in Fresno until the next morning, Allen drove the
truck to his home in Sacramento, spent the evening there,
and unloaded in Fresno the following morning. While in
Fresno, Allen received instructions to pick up a new load in
Latrobe, a town just outside of Sacramento, and deliver it
to Redding. Allen returned to his home in Sacramento,
spent the night there, and loaded in Latrobe the next
morning, Friday, May 7. According to Allen's credited
testimony, after he finished loading, he called Moss and
asked him if he wanted Allen to park his truck in Redding
over the weekend; Moss replied that he wanted Allen's
truck in Redding during the weekend (although the drivers
do not work on weekends); Allen then told Moss that he
could not work under those conditions, explaining that he
could not afford to live in a motel in Redding when Moss
was dispatching other drivers around him and not letting
him work; Moss asked Allen if he was quitting; Allen
replied that he was not, but that he would go bankrupt if
Moss continued to dispatch him in the manner he was
doing; Moss responded by telling Allen that either he
would work under his (Moss') terms and work out of
Redding, or he would not work at all; Allen asked if he
were being fired to which Moss replied that he was not, but
that he would send another driver down to Sacramento to
pick up Allen's truck; and another driver was sent down
that day to pick up Allen's truck. Allen did no further work
for the Respondent. The record does not disclose whether
subsequent to May 7 Respondent attempted to dispatch
Allen or that he called to request a dispatch.
I am of the opinion that Allen was constructively
discharged on May 7 and that the discharge was violative
of Section 8(aX3) and (1) of the Act on the finding that it
was caused primarily by Respondent's discriminatory
requirement (as found hereinabove) that Allen operate his
truck out of Redding which placed Allen under an
extremely onerous burden compared to the prior terms and
conditions of his employment, and also by its discriminato-
ry treatment of him with respect to dispatches the first 2
days after he reported to Redding.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its
operations set forth in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor
practices found herein and take certain affirmative action,
He was not a convincing witness in giving this testimony or that he
mentioned he had so decided at one of the meetings with the drivers.
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as provided in the recommended Order below, designed to
effectuate the policies of the Act.
It was found hereinabove that Respondent's ordering
Allen to operate his truck out of Redding was discriminato-
rily motivated and that he was constructively discharged in
violation of Section 8(a)(3) and (1). Accordingly, it will be
recommended that Respondent be ordered to offer Ralph
Allen immediate and full reinstatement to his former job,"
without prejudice to his seniority or other rights and
privileges, including the right and privilege of operating his
truck from his home in the Sacramento area.12 It will be
further recommended that Respondent be ordered to
reimburse Allen for any loss of pay he may have suffered
from May 7, 1976, up to the time the offer of reinstatement
is made, in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, 291-293 (1950), together with 6-
percent interest thereon in accordance with Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact and upon
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union and the Woodworkers are each labor
organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(aX)(1) of the Act
by unlawfully interrogating an employee on or about April
6, 1976, concerning his intentions relating to the Union.
4. Respondent violated Section 8(a)(1) of the Act in
mid-April 1976 by creating the impression of surveillance
of activities by and on behalf of the Union.
5. Respondent violated Section 8(a)(3) and (1) of the
Act on April 28, 1976, by discriminatorily ordering Allen to
operate his truck out of Redding instead of out of his home
in the Sacramento area.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by its constructive discharge of Allen on May 7, 1976.
7. General Counsel failed to prove by a preponderance
of the evidence the allegations of violations of Section
8(a)(1) of the Act set forth in paragraphs Vl(a), (c), (e), and
(f) of the complaint.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 13
The Respondent, North Valley Lumber Sales, Inc.,
Redding, California, its officers, agents, successors, and
assigns, shall:
I" There does not appear to be any possibility of the existence of a
substantially equivalent job.
12 This recommendation, however, should not be so construed as to
prohibit Respondent at some future date from requiring Allen to operate his
truck out of Redding, if said action is motivated by purely economic
reasons; i.e., untainted by any unlawful motive.
13 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.
1. Cease and desist from:
(a) Unlawfully interrogating employees about their
intentions relating to General Teamsters Local Union No.
137, or any other labor organization.
(b) Unlawfully creating the impression of surveillance of
activities by or on behalf of said Union, or any other labor
organization.
(c) Discriminatorily changing the terms and conditions
of employment of employees to more onerous ones because
of their exercise of rights to which they are entitled under a
collective-bargaining agreement it has with said Union, or
any other labor organization.
(d) Constructively discharging employees by changing
the terms and conditions of employment of its employees
to more onerous ones because of their exercise of rights to
which they are entitled under a collective-bargaining
agreement it has with said Union (or any other labor
organization) and/or under Respondent's customary em-
ployment practices.
(e) 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 which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Ralph Allen immediate and full reinstatement
to his formerjob, without prejudice to his seniority or other
rights and privileges, including the right and privilege of
operating his truck from his home in the Sacramento area,
and make him whole for any loss of pay suffered by him by
reason of his unlawful constructive discharge on May 7,
1976, in the manner set forth in the section hereinabove
entitled "The Remedy."
(b) Post at its place of business in Redding, California,
copies of the attached notice marked "Appendix." 14
Copies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by an
authorized representative of Respondent, shall be posted
by Respondent 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.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of
unfair labor practices set forth in paragraph VI(a), (c), (e),
and (f) of the complaint should be, and are hereby,
dismissed.
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.
14 In the event that the Board's 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."
1218