R & N Express, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1104 (N.L.R.B. 1976)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R & N Express , Inc , and Arnco Serv ice & Leasing
Company, Inc and Lorenzo Campbell Case 22-
CA-6233
June 17, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On October 20, 1975, Administrative Law Judge
Bernard J Seff issued the attached Decision in this
proceeding Thereafter, Respondent and General
Counsel each filed exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein
We agree with the Administrative Law Judge that,
as stipulated by the parties, the two companies here
are a single integrated enterprise constituting a single
employer The record also shows that 11 drivers were
employed by the Respondent, that at some prior
time there was a signed contract with the Union,
though the current one in the hands of the Union
was never properly signed, and that Respondent
continues to pay fringe benefits to the Union for 3
drivers,' including employee McCreary who is re-
ferred to in the record as the shop steward
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
promising Campbell and Haynes additional wages
and other benefits in late September in order to in-
duce them to refrain from joining the Union We also
agree that the Administrative Law Judge reached the
correct result in finding that Respondent's layoff of
Haynes and Campbell on October 15 violated Sec-
tion 8(a)(1) and (3) of the Act However, we arrive at
this conclusion without relying, as the Administrative
Law Judge did, on the Union's October 11 letter to
Campbell to establish Respondent's knowledge of
Campbell's acceptance as a union member As we
view the matter, there is considerable doubt that this
letter would have been in Respondent's possession in
'Testimony indicates that R & N had had a contractual relationship
with the Teamsters about 6 years prior to the hearing When the new
contract was coming up in 1972 the union delegate died suddenly and
Nisivoccia Sr went to the hospital Respondent testified that the office
manager kept paying the union benefits but never knew if the contract
was signed
time to hand it to Campbell on October 15 2 Howev-
er, there is no lack of Respondent knowledge that
both discrimmatees were actively interested in join-
ing the Union, for Campbell, like Haynes, testified
that he was told by Nisivoccia Jr that Respondent
did not want him in the Union because it could not
afford the benefits The Administrative Law Judge
credited Haynes' testimony to that effect but failed
to mention the parallel testimony of Campbell Thus,
Campbell testified that when hired he was told that
the shop was nonunion and, as credited by the Ad-
ministrative Law Judge, on the day following his dis-
charge Campbell talked to Nisivoccia Sr in Haynes'
presence, as follows "I stated my reasons forjoining
the Union and he told me that when I was hired they
had informed me that they didn't have a Union and
that we had went over his son's head and he said
under considerations if I release my membership
with the Union, when the son got back he would
consider reinstating us "
Concerning the Respondent's economic defense
for the layoffs, we agree with the Administrative Law
Judge's result finding it unpersuasive Assessing the
evidence at face value, without questioning the credi-
bility of the accountant or the lack of documentary
support, we find it inadequate to demonstrate that
economics rather than unwanted additional union
members was the reason for these two layoffs In this
connection, we note that Respondent in its excep-
tions emphasizes a loss for 3 straight months "com-
mencing" in October-figures which cannot have
motivated the October 15 layoffs And Nisivoccia's
promise that consideration would be given to the re-
instatement of Campbell and Haynes if they re-
nounced their union membership hardly squares with
Respondent's claim that, only the day before, busi-
ness conditions were such that they had to go We
view the promise as proof of the real motivation for
the discharges In the circumstances, we find that the
layoffs of Campbell and Haynes and refusal to rein-
state them violated Section 8(a)(1) and (3) of the Act
We disagree with the Administrative Law Judge's
conclusion that Respondent's surveillance of Haynes
violated the Act Respondent did not deny that
Haynes was under "surveillance," but contended
that it had routinely followed industry practice in
2 The envelope with an Elizabeth New Jersey return address was direct
ed to Campbell at Newark and postmarked October 11 at I I p in a Friday
The post office marked it address unknown return to sender It was not
redirected to Campbell at Respondent s address but allegedly was already
open when handed to him by dispatcher Harris With a Sunday and a
Monday holiday intervening there is at least some question that it was
again in the Unions hand on Tuesday October 15 for possible hand deliv
ery Harris denied that he handed the envelope to Campbell and also that he
had ever seen the enclosed letter We also note that the Administrative Law
Judge abruptly cut off Harris in what appeared to be an attempted protest
at Campbells testimony
224 NLRB No 156
R & N EXPRESS, INC 1105
this respect Stating that the Company had adduced
"no evidence" that it routinely surveyed drivers, and
that it "was not denied" that Respondent engaged in
surveillance of Haynes because it knew he had joined
the Union, the Administrative Law Judge made his
surveillance finding However, the record shows that
Respondent did adduce testimony to the effect that it
had for several years followed industry practice of
following and checking on drivers In response to the
Administrative Law Judge's question, "It keeps them
[the drivers] honest'" Nisivoccia Sr responded
"Right They never knew when the hell I would show
up " Harris also testified that for the 20 years that he
had been employed by Respondent it had been Nisi-
voccia Sr 's policy to check on all drivers, and that
Haynes was checked because Respondent felt he was
not being honest in reporting the correct time for his
route Based on the record, we conclude, despite the
close proximity between Haynes' Joining the Union
and the alleged surveillance, that the General Coun-
sel has not proved that Respondent's surveillance of
Haynes violated the Act
The General Counsel has excepted to the Adminis-
trative Law Judge's failure to find that Respondent
also violated Section 8(a)(1) and (3) of the Act
through encouragement of union membership by dis-
criminatorily contributing to union pension and
medical plans only on behalf of three employees who
were union members and refusing to do so for other
driver employees The Administrative Law Judge ad-
verted to this issue, noting the testimony and the
General Counsel's argument, but he made no finding
in this regard The General Counsel renews its argu-
ment here, contending that Board law is clear that an
employer who provides its union employees benefits
that it does not provide for nonunion employees "in-
herently encourages membership in the Union " Re-
spondent contends that there can be no such finding
on a record which lacks proof of certification or an
outstanding collective-bargaining agreement This
approach overlooks the fact that the evidence here
clearly shows that Haynes and Campbell Joined the
Union only because they were denied benefits equiv-
alent to those received by McCreary, Maddox, and
Hopkins Thus, a classic case of "discrimination in
regard to a condition of employment to encour-
age membership in any labor organization" has
been proven, and we so find This is not a case
where, as in Gaynor News Company, Inc v N L R B,
347 U S 17 (1954), the discrimination found violative
was "inherent" in the disparate treatment as between
unit employees admittedly employed pursuant to
contract On the contrary, there is clear proof here
that Haynes and Campbell were encouraged to join
the Union because of the Respondent's preferential
treatment of the three union member employees
Hence, we find that Respondent violated Section
8(a)(1) and (3) of the Act
Having found that Respondent has unlawfully en-
couraged union membership by providing disparate
additional benefits for employees who were union
members while refusing to provide the same or
equivalent benefits for employees who were not
union members, we shall modify the remedy section
of the Administrative Law Judge's Decision so that
Respondent is required to make Lorenzo Campbell
and Marion Haynes whole for any losses they may
have suffered by Respondent's discrimination in the
following manner
1 Respondent shall make pension fund payments
on behalf of Lorenzo Campbell and Marion Haynes,
either to the Union or an equivalent pension plan, in
such manner and amounts as will place Campbell
and Haynes in the same position with respect to ben-
efits accrued in such pension plan as they would have
been but for Respondent's discriminatory refusal to
make such payments
2 Respondent shall institute on behalf of Lorenzo
Campbell and Marion Haynes the same or equiva-
lent medical plan as it contributed to for union mem-
ber employees, including making Haynes and Camp-
bell whole by reimbursing them for any medical
expenses for which they would have been reimbursed
under such health plan but for Respondent's discrim-
ination in not making such medical plan contribu-
tions on their behalf, toghether with interest at 6 per-
cent per annum
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent,
R & N Express, Inc, and Arnco Service & Leasing
Company, Inc, Newark, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied
1 Substitute the following for paragraphs 1(b) and
(c) `(b) Discouraging concerted activities of its em-
ployees under Section 7 by promising them addition-
al wages or other benefits in order to induce them to
refrain from becoming members of the Union
"(c) Coercing employees by telling them it could
not afford any more employees to become members
of the Union
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(d) Providing disparate pension and/or medical
plan benefits only on behalf of union member em-
ployees, while refusing to provide equivalent benefits
to employees who are not union members, or by
otherwise discriminating with regard to terms and
conditions of employment so as to encourage mem-
bership in any labor organization
"(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act "
2 Insert the following as paragraph 2(b) and relet-
ter the subsequent paragraphs accordingly
"(b) Make Lorenzo Campbell and Marion Haynes
whole for any losses they may have suffered due to
Respondent's discriminatory refusal to provide the
same or equivalent health and welfare benefits in the
manner set forth in the remedy section above as
amended in the Board's Decision and Order "
3 Substitute the attached notice for that of the
Administrative Law Judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage concerted activity by
discharging or laying off our employees, or in
any other manner discriminate against them in
regard to their hire or tenure or terms or condi-
tions of employment
WE WILL NOT provide disparate pension or
medical benefits only on behalf of our employ-
ees who are union members, while not providing
equivalent benefits to employees who are not
union members
WE WILL NOT discourage the concerted activity
of our employees by promising them additional
wages or other benefits in order to induce them
to refrain from becoming members of a union
WE WILL NOT coerce employees by telling
them that we cannot afford to have any more
employees become members of the Union
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights under Section 7 of the Act
WE WILL offer Lorenzo Campbell and Marion
Haynes reinstatement to their former jobs or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to any
seniority or other rights and privileges previous-
ly enjoyed, and WE WILL make them whole for
any loss of pay suffered as a result of our dis-
crimination against them, discharging if neces-
sary any persons hired to replace them
WE WILL make Lorenzo Campbell and Marion
Haynes whole for any losses they may have suf-
fered as a result of our refusal to provide to
them the same or equivalent health and pension
benefits as provided to our employees who are
union members
R & N EXPRESS , INC, AND ARNCO SERVICE &
LEASING COMPANY, INC
DECISION
STATEMENT OF THE CASE
BERNARD J SEFF, Administrative Law Judge Upon a
charge filed by the above-named individual on February 6,
1975, the General Counsel of the National Labor Relations
Board, by the Regional Director of Region 22, issued a
complaint, dated May 16, 1975, against the above-named
Companies, Respondents herein, alleging that Respondent
had engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) by terminating the employment
of Lorenzo Campbell and Marion Haynes on October 15
or 18, 1974, and thereafter refusing to reinstate them be-
cause they had joined the Teamsters Union, Local 478
Respondent filed an answer denying the commission of
unfair labor practices A hearing was held before me in
Newark, New Jersey, on August 20 and 21, 1975 Briefs
were filed by the General Counsel and the Respondents
Upon the entire record in the case and from my observa-
tion of the demeanor of the witnesses, I make the follow
mg
FINDINGS OF FACT
Respondents are incorporated in the State of New Jer-
sey, R & N and Arnco are a single integrated enterprise
engaged in the business of general trucking and truck leas-
ing with its principal place of business located at 1276 Mc
Carter Highway, Newark, New Jersey R & N and Arnco,
hereinafter collectively called Respondent, are a single em-
ployer within the meaning of Section 2(2) of the Act
In the course and conduct of Respondent's trucking and
leasing operations during the preceding 12 months, Re-
spondent received gross revenue in excess of $50,000, of
which gross revenue in excess of $50,000 was derived from
operations performed pursuant to contracts or arrange-
ments with various interstate common carriers, including,
inter alra Universal Carloading & Distributing Company,
Inc, Acme Fast Freight, Inc, I M L Freight, Inc, Time-
DC, Inc, and Denver Chicago Trucking Car operating be
tween and among various States of the United States Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and I so find
Teamsters Local No 478, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act
I so find
R & N EXPRESS , INC 1107
11 THE ALLEGED UNFAIR LABOR PRACTICES
A Introduction
The complaint alleges that on or about October 10, 1974,
at its Newark place of business, Respondent by Nisivoccia,
Jr , its president and treasurer, offered and promised its
employees wage increases and other benefits and improve-
ments in their working conditions in order to induce them
to refrain from becoming or remaining members of the
Union or giving any assistance or suppport to it It is fur-
ther alleged that on or about October 11, 1974, Respon-
dent, through its vice president, Andrew Nisivoccia, kept
employee Haynes under surveillance The Company ad-
mitted they sent Andy Nisivoccia out to follow Haynes to
see if he stayed on his job or spent some of his time in
neighborhood taverns when he was obligated to return
from his runs and work on the loading dock
Both Haynes and Campbell were laid off on October 15,
1974 After complaining to the president of Local 478, Jo-
seph Uzzohno got word to Haynes and Campbell that the
men should go back to the Company every morning and
shape up
On November 21, 1974, both Haynes and Campbell met
with Nisivoccia, Jr, were asked to and did sign a statement
which reads as follows (G C Exh 4) "I have received all
my backpay and all benefits due me I release them for and
from all and everything henceforth that I may have coming
to me from R & N Express, Inc, I affix my signature this
21st day of November, 1974"
The Company admits that they paid each man a thou-
sand dollars in exchange for signing the above statement
Nisivoccia, Sr, explained the reason for requiring the
men to sign this statement was due to the fact that he had
explained to him by his lawyer that the lawyer's fee for
representing the Respondent in an unfair labor practice
case would be about $5,000 Nisivoccia, Sr, decided that it
would be cheaper to pay off the men than pay his lawyer's
fee He also said that when Campbell and Haynes shaped
every morning after they were laid off, they antagonized
the other employees, and Nisivoccia, Sr, was afraid if this
activity continued there would be fights on the Company's
premises
With respect to the other 8(a)(1) activities engaged in by
Respondent these consisted of statements made to the two
men that the Company did not want the men to join the
Union because it could not afford the Union's rate at Arn-
co Company which was a nonunion shop In addition, Ni-
sivoccia, Jr, offered to increase the pay and other benefits
(like pension and health and welfare payments) if the men
did not join the Union
B 8(a)(1) Activities
Campbell testified that after his layoff on October 15 he,
together with Haynes, spoke on the very next day October
16, with Nisivoccia, Sr, Sonny Harris, company dispatcher
and supervisor, and Eddie McCreary, union shop steward,
in a meeting that the men held on the loading platform
Campbell stated
I stated my reasons for joining the Union and
Tony, Jr, told me that when I was hired they had
informed me that they didn't have a union and that we
had went over his son's head and he said, under con
siderations, if I release my membership with the
Union, when the son got back he would consider rein-
stating us
After the layoff on October 15 Campbell testified he talked
to a Mr Harry Serio, who is a representative of Local 478,
with whom both Haynes and Campbell had a meeting at
the union hall located in Union, New Jersey Serio told us
to shape up every morning The men told Serio that there
were men still working for the Company with less seniority
than they had Mr Serio talked to the Company and gave
them a deadline Serio contacted the Company and then
told the men that he had spoken to R & N Company
Subsequently, on or about October 18, a meeting was held
in the driver's room at the Company s place of business
among Serio, Campbell, Haynes, Nisivoccia, Sr, and Nisi
voccia, Jr Serio told the company representatives that they
had to release the men with less seniority and put Haynes
and Campbell back to work They were not reinstated to
their jobs
During the last part of October another meeting was
held in the driver's room at the Company's place of busi-
ness Nisivoccia, Sr, said that he was informed by the
Union that he had to give the men backpay He offered
Campbell about $1500 and requested him to sign a state-
ment that he no longer wanted to work at the Company
Campbell did not accept this money, nor did he sign a
statement at that time because he was told by McCreary
and also by the president of Local 478 that a member of
the Union could not negotiate with the employer Thereaf-
ter, another meeting was held, this time on November 21
with the Employer This meeting was also held in the
driver's room According to the testimony of Campbell,
Nisivoccia, Sr, said he was making another offer of $500
and that he had contacted his lawyer who told him that he
had no contract with Local 478 and that he really didn't
have to give the men anything
Once again Campbell did not accept the money and he
went to the union hall in Union, New Jersey, where he
spoke to the Union's president, Uzzolino Uzzolmo told
Campbell that he had looked at the records and that the
contract with R & N Express was not signed Uzzolino
continued by saying that because the contract was not
signed he would try to get $1000 apiece for Haynes and
Campbell and he would advise them to accept the money
Campbell said both men went back to the Company and
signed a statement and accepted the $1000 He explained
that they accepted the money because they were advised to
do so by Uzzolino
Nisivoccia, Jr, admitted in his testimony that McCreary,
Hopkins, and Maddox were members of Local 478 The
remaining eight employees were not members of any labor
organization It is undisputed that the 11 employees per-
formed the same work duties as the Charging Party for
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, for example, driving trucks and working on
the loading platform after completing their truck runs Ni
sivoccia, Jr, testified that Respondent contributed into Lo-
cal 478's pension and medical plans on behalf of Mc-
Creary, Hopkins, and Maddox
The General Counsel argues that the Respondent dis-
criminated against its employees who were not members of
Local 478, are contributing into Local 478's pension and
medical plans only on behalf of those employees who were
members of Local 478, thereby illegally encouraging mem-
bership in the Local Union It is further argued by the
General Counsel that Campbell and Haynes joined Local
478 in an effort to obtain union benefits after Respondent
failed to fulfill his repeated promises of giving the non-
union employees any fringe benefits The General Counsel
further argues that when the Company laid off Campbell
and Haynes for joining Local 478 they actually encouraged
membership in Local 478 by disparate treatment of non-
union employees
Both Campbell and Haynes testified that in late Septem-
ber 1974 they signed application cards for Local 478 after
Nisivoccia, Jr, failed to keep his promises about giving
them benefits Haynes testified that after being notified by
the shop steward, McCreary, that he was accepted into
Local 478, he and McCreary approached Nisivoccia, Jr,
about Haynes receiving union benefits and wages Respon
dent discovered that Campbell joined Local 478 when it
received, opened, and returned to Campbell a letter advis-
ing him that his application for membership was approved
This letter was sent to Campbell by Local 478 Even
though Respondent denied any knowledge of Haynes or
Campbell's acceptance into Local 478, the General Coun-
sel contends that Campbell and Haynes' testimony should
be credited because, for one thing, there was introduced
and received into evidence at the hearing a letter addressed
to Campbell from the Union which had been returned by
the post office with the notation that the addressee was not
at the address on the letter This letter was opened by Re
spondent and the Respondent gave Campbell the opened
letter with the notice about his acceptance into the Union
The Company's knowledge concerning the membership of
Campbell and Haynes is further manifested by the fact
that Henry Karswell, a witness called by the Respondent,
admitted that McCreary told him in September 1974, be-
fore Campbell and Haynes were laid off, that their applica-
tions for membership in Local 478 had been accepted De-
spite the fact that Karswell denied telling anyone about
this fact I do not credit this testimony
Nisivoccia, Jr, testified that he contributed to Local
478's pension and medical plans to keep the drivers happy
Rather than laying off employees for joining Local 478 and
obtaining union benefits he went to his employees in Au
gust and September 1974 to initiate his own benefit plans
on their behalf It should be noted that as of the date of the
hearing Respondent still did not have a benefit plan for the
nonunion employees since it said it could not afford one
Respondent's position is that Haynes and Campbell
were laid off as a result of the decline in business resulting
from a loss of customers and that in September or October
1974 there was decision made to release four employees
according to their seniority
C Company s Explanation of Reason for Layoff
Respondent offered as its explanation of the layoff of
Haynes and Campbell testimony by its accountant , George
Mossey , who gave all testimony from certain records that
he had in his possession and from which he made state-
ments concerning the profits and losses from R. & N Ex-
press and Arnco Mossey testified that for the fiscal year
end'ng June 1974 Arnco had a profit of $1,318 98 and that
for the same period , R & N had a profit of $17,023 16 It
should be noted that Mossey works for an accounting firm
which is related to Nisivoccia , Jr, and Nisivoccia, Sr
It is the Respondent's contention that Haynes and
Campbell were laid off because business fell off sharply in
September and October It was explained that one of the
Company's best customers, the Wiss Company , ceased its
operations due to the fact that the employees of Wiss were
out on strike for almost the whole month of October The
Company's dispatcher , Sonny Harris, testified for the Re-
spondent and stated that before Nisivoccia , Jr , left on his
vacation he had left instructions that four employees would
be laid off in order of their seniority
Before Nisivoccia left for his vacation in October he told
Harris that if things did not improve , he, Harris, was to
lay off four men Nisivoccia Jr , testified that he told Harris
to lay off the four men with the least seniority However,
the General Counsel points out that Harris only laid off
Campbell and Haynes on October 15, 1974 , and it wasn't
until October 22, 1974, that two other employees , Hargrove
and Engers , were laid off Tony, Jr, also testified that Har-
grove and Engers worked every summer for the Respon-
dent since 1972 and that they started in July or August and
worked until either September or October
Respondent contended as a result of the sharp business
fall in September and October the route which had been
assigned to Haynes was almost without business Haynes,
however, testified that the volume of freight on his route
did not diminish noticeably during the above mentioned
months Tony , Jr, testified that no one took over Haynes'
and Campbell 's routes after they left He said that "their
routes were combined with other drivers " However, Harris
contradicted this when in response to a question about
Campbells route Harris stated , "Campbells route, one of
my oldest drivers had 10 years , Dan Maddox, took that run
over He asked for it because he had run it before " I do
not credit the testimony of Nisivoccia , Jr, because his re-
cital was confused , contained inconsistencies , and his de-
meanor while he was on the witness stand made a poor
impression on me
D Surveillance and Other 8(a)(1) Activity
Haynes testified that he had a conversation with Nisi-
voccia, Jr, and was told by him, ' He could not afford
any more employees to become members of the Union "
Nisivoccia, Jr, also said "he would try to get better bene-
fits for the remainder of the employees and he would see
that I [Haynes] got a raise in a few days
About the latter part of September, and after the above
conversation, Haynes was told by one of the drivers, John-
son, to be careful because he would be watched Thereafter
R & N EXPRESS, INC
he noticed on several of his stops that he was being fol-
lowed by Andy Nisivoccia At one time he pulled over to
the side of the road to check his air lines and "at that time
he-I anticipated him passing the caution light" and `he
like to have run into the rear of the truck "
The Respondent did not deny that Haynes was under
surveillance Respondent's brief explained the above inci-
dent by stating, "that it was a common practice to follow a
route driver " Further that the Company felt that Haynes
was not being honest in logging his actual delivery times It
should be noted that this incident took place in close prox-
imity to the date when Respondent opened a letter notify-
ing one of the men that he had been accepted as a member
of Local 478 If it is true that the Company engaged in
systematic surveillance of its drivers it adduced no evi-
dence on the record in proof of this assertion The timing
of this incident, coming as it did around the time Haynes
joined the Union, is highly suspicious
Concluding Findings and Analysis
It is clear from the record, and it was not denied, that
Respondent engaged in surveillance of Haynes because it
knew he had joined the Union and Nisivoccia, Jr, had
stated that the Company could not afford to have any
other of its employees to join the Union The inference I
take from this occurrence is that Respondent was trying to
"get" Haynes because he had joined the Union I so find
This taken together with its statement that it could not
afford to have any additional employees join the Union
and therefore Respondent promised both men that if they
refrained from joining the Union it would grant them an
increase in wages and other benefits provides the motive
for the promise
Company knowledge of the support for Local 478 is
established beyond peradventure of doubt because Re-
spondent opened a letter addressed to one of the men by
the Union This letter, received into evidence without ob-
jection by Respondent, demonstrates that Respondent had
written knowledge that one of the men had been accepted
into membership by the Union I so find Furthermore, I
find that Respondent violated Section 8(a)(1) of the Act by
promising Campbell and Haynes additional wages and
other benefits in order to induce them to refrain from be-
coming members of the Union
The explanation of economic stringency as being the ba
sis for the layoff of Campbell and Haynes is highly suspect
because I do not credit the testimony of Respondent's ac-
countant Further, the men testified credibly that there was
no diminution in the amount of freight they trucked during
October 1974 at a time when the Wiss Company had alleg-
edly ceased operating and using the services of Respon-
dent
Taken all in all the alleged falloff in business was a
pretext to mask the true reason why Campbell and Haynes
were laid off But for the fact that they had joined the
Union neither their layoff nor the surveillance of Haynes
would have taken place
Based on the above I find and conclude that the Compa-
ny violated Section 8(a)(1) and (3) of the Act
CONCLUSIONS OF LAW
1109
1 By laying off and failing and refusing to reinstate
Lorenzo Campbell and Marion Haynes because they en-
gaged in concerted activities for the purpose of collective
bargaining and other mutual aid and protection, Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act
2 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that Respondent be or-
dered to cease and desist therefrom, and from like and
related unfair labor practices, and that it take the affirma-
tive action provided for in the recommended Order, below,
which I find necessary to effectuate the policies of the Act
Having found that Respondent unlawfully laid off Lor-
enzo Campbell and Marion Haynes, it will be recommend-
ed that Respondent be ordered to offer them immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and that Respondent make
each of them whole for any loss of pay that he may have
suffered by payment to them of a sum of money equal to
that which he normally would have earned from October
15 or 18, 1974, to the date of the offer of reinstatement, less
net earnings, if any, during such period, to be computed in
the manner prescribed in F W Woolworth Company, 90
NLRB (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'
Respondent, R & N Express, Inc, and Arnco Service
and Leasing Co, Inc, Newark, New Jersey, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Discouraging concerted activities of its employees by
discharging or laying off any of its employees or by dis-
criminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employ-
ment
(b) Engaging in surveillance of our employees in viola-
tion of the National Labor Relations Act
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act
1 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
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act
(a) Offer Lorenzo Campbell and Marion Haynes imme-
diate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or
other rights and privileges, discharging if necessary any
employees hired to replace them, and make them whole in
the manner set forth in the "Remedy' section of this Deci-
sion
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay
roll records, timecards, personnel records, and all other
records necessary for determination of the amount of
backpay due and the rights of reinstatement under the
terms of this Order
(c) Post at its place of business in Newark, New Jersey,
copies of the attached notice marked "Appendix " 2 Copies
of said notice, on forms provided by the Regional Director
for Region 22, after being signed by an authorized repre-
sentative 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 cus
tomarily posted Reasonable steps shall be taken by Re
spondent to insure that said notices are not altered, de-
faced, or covered by any other material
(d) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
2 In the event that the Boards 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