Radco Enterprises, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1971

189 N.L.R.B. 278 (N.L.R.B. 1971)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Radco Enterprises , Inc. and Gregory E. Bacl . Case 9-
CA-5657
March 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On November 9, 1970, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent had not engaged in certain other
alleged unfair labor practices. Thereafter, the Respon-
dent and the Charging Party each filed exceptions and
a supporting brief, and the Respondent filed an
answering brief to Charging Party's exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The ru'_rlgs are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations.'
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 Trial Examiner and hereby orders that
the Respondent, Radco Enterprises, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.2
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C A 3) We find no such basis for disturbing the Trial
Examiner's credibility findings in this case
2 In footnote 3 of the Trial Examiner's Decision, substitute "20" for
"10" days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: This case was tried
at Cincinnati, Ohio, on August 24, 1970,' pursuant to a
charge filed by an individual, Gregory E. Back, on May 19,
and pursuant to a complaint issued June 30. The primary
issues are whether the Respondent, Radco Enterprises, Inc.,
herein called Radco or the Company, unlawfully interro-
gated and threatened an employee, and later discriminato-
nly discharged the employee, in violation of Section 8(a)(1)
and (3) of the National Labor Realtions Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Company, and
the Charging Party, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE UNION
INVOLVED
The Company, an Ohio corporation, is engaged in truck
repairing at its Cincinnati, Ohio, garage, where it annually
performs services valued in excess of $50,000 for Ace
Doran Hauling & Rigging Company, herein called Doran
Hauling, which in turn has an annual gross revenue in
excess of $50,000 from interstate shipping and transporta-
tion operations. The Company admits, and I find, that it is
engaged in commerce within the meaning of the Act, and
that Truck Drivers, Chauffeurs and Helpers Local Union
No. 100, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the
meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Two brothers and their nephew are presidents of three
corporations with offices at the same address on Blue Rock
Street in Cincinnati. One of brothers, Robert Doran, is
president of Ace Doran Hauling & Rigging Company,
herein called Doran Hauling. The other brother, Richard
Doran, is president of Radco, which (like Doran Hauling)
was nonunion. The nephew, Raymond Doran, is president
of Doran Transfer and Rigging Company, herein called
Doran Transfer, which was unionized. Radco serviced and
maintained equipment used by both Doran Hauling and
Doran Transfer, and leased equipment to both these
companies. In December 1969, the Union began organizing
Doran Hauling's truckdrivers, and the hearing in the
representation case involving that employer was held on
April 14.
Gregory Back, a high school student, was hired to work at
the nonunion Radco shop on weekdays after school, on
Saturday mornings, and full-time during the summer. Both
Richard and Raymond Doran treated him as part of the
Doran family. Richard Doran created the job for Back
(washing and fueling trucks, getting trucks ready, etc.).
Although Back was not classified as a truckdriver, he drove
trucks around the lot and to a commercial washer. Seeking
union representation upon being denied a wage increase,
Back signed a union authorization card in March, and
attended the April 14 representation hearing. Three days
later he was discharged. The complaint alleges that this
discharge was discrmmatorily motivated.
1 All dates, unless otherwise indicated, are in 1970
189 NLRB No. 48
RADCO ENTERPRISES , INC 279
B. Alleged Threats and Interrogation activity) was clearly a coercive threat and violated Section
8(a)(1) of the Act.
According to employee Back (who impressed me as an
honest , forthright witness), he and Radco Manager Clyde
Thomas were talking in January about the Union's
organizing drive and he mentioned to Thomas that "maybe
I should join it for better wages ." Thomas "told me that
would be bad news if I got involved with the Union because
I'd get run off." Later in February, when two of the
truckdrivers at the garage suggested that Back should
attend a union meeting for drivers, Thomas told Back that
if he went to the meeting, he was "just looking for trouble.
That's all." (When Manager Thomas was asked if in
January Back told him anything about the Union being
around , and if he told Back that he should not get involved
"and that if he did he'd be run off," Thomas answered each
time , "Not as I recall ." Thomas denied telling Back that he
would get in trouble if he went to union meetings. Back
impressed me as the more trustworthy witness, and I credit
his testimony, and discredit Thomas' denials.) Thomas is
admittedly a supervisor. I find that his threats to Back were
coercive , and violated Section 8(a)(1) of the Act.
Employee Back further testified that also in February he
talked to Doran Transfer President Raymond Doran about
going to the union meeting, and Doran "told me that it
would be just asking for trouble in getting involved with the
Union so I shouldn 't go." Later in March, after first asking
Manager Thomas and then President Richard Doran for a
raise in wages , Back mentioned to Raymond Doran that "I
was still possibly interested in the Union because I couldn't
seem to get a pay raise ." Doran "said if Bob Doran and
Richard Doran found out the news about my being
possibly interested in the Union I would be slightly put out
on my tail." The complaint alleges that Raymond Doran
was acting on behalf of Radco. However, I find that the
General Counsel has failed to prove that Raymond Doran
was Radco's agent . There is therefore no basis for holding
Radco accountable for Raymond Doran's statements.
On the evening of April 14, employee Back and about 12
Doran Hauling Drivers who also attended the hearing in
the representation case , went to the Radco shop. Manager
Thomas began asking questions about what had transpired
at the hearing . As credibly testified by Back, Thomas asked
the drivers what Doran Hauling President Doran and some
of the drivers had testified . During the discussion, one of
the drivers mentioned that Back had been in the hearing
room during the hearing . Thomas stated to Back , "Well,
like wow! You're really going to be in some trouble now
when Rich Doran finds this out. Bob [Doran] will be sure
to tell him first thing." (Thomas had a different version. He
testified that Back and the drivers came in together and
were talking about the hearing. "And one of the boys told
me, he says, "What do you think of our fair-haired boy? He
joined the union ." I said , "What? Joined the Union?" I
said , "He don' t even work for Ace Doran." This too may
have been said , but I also credit Back's version.) The
General Counsel failed to prove that Thomas' inquiries
about the testimony were coercive ; I therefore find no merit
to the allegation of coercive interrogation . However, I find
Thomas' statement (about there being trouble when Robert
Doran told his brother, Richard Doran, about Back's union
C. Discriminatory Discharge
On April 15, the day after he attended the representation
hearing, employee Back (as he credibly testified ) returned
to work but was told by Manager Thomas that "he didn't
have any work for me." The next day, Thomas told Back
the same thing . On the third day, Friday, April 17, in the
presence of Safety Director Maurice Barrett, Thomas
informed Back "that Richard Doran had said for me to
take a little vacation until this union trouble was over and
gave me my pay check ." Then "Mr. Barrett brought up
something about if I had tried to organize the office,
[Doran Haulmg's] office , which I denied . I said that I had
just repeated a statement that I had heard ; that a lot of
people in the office might possibly be interested injoining
the Union . But I , in no way, tried to organize the office."
(Barrett testified , "I didn't pay too much attention" to the
conversation , and denied being able to recall much of it. He
did not impress me as a candid witness, and I do not credit
his testimony.)
Manager Thomas , when testifying as a defense witness,
appeared to be attempting to fabricate a plausible version,
rather than candidly reporting what had actually happened.
He claimed that , as he recalled , Back was sent home for
being late for work on Saturday , April 4, and that Back did
not report again for work between April 4 and April 17
except for one time , on Saturday , April 11. Thomas testified
that Back did not indicate why he had not been reporting to
work and denied asking him where he had been . Thomas
testified that he did not know when he decided to discharge
Back : "I don ' t know what day it was . He just hadn't
showed up." Later he changed his testimony and stated he
was sure that he decided to discharge Back on April 17,
when he gave Back his check . Still later , he again changed
his testimony , testifying "I can't really sayjust exactly what
time it was that I decided I 'd let him go . But I just let him go
on the 17th . As far as I know I must have made up my mind
at that time then ." According to Thomas , "I told him he
was no longer needed and I gave him his check." When
asked if he gave any further explanation , Thomas
answered , "No. He didn't ask me no reason ." Then, upon
being asked another question , Thomas changed his
testimony and stated , "Oh, wait a minute . Yes, he did ask
me a reason too. He asked me if it was because he joined
the Union . And I told him it had nothing to do with it."
When recalled to the stand , employee Back credibly
testified that it was around the first or middle of March
when he was sent home for reporting late on a Saturday
morning, and that this could not have been on April 4
because he left on Tuesday evening , March 31 , and went to
Florida for about 10 days-after going by the shop and
telling Thomas , and stopping by Raymond Doran's office
the same evening and also telling Doran. After returning
from Florida , he went back to work. (Earlier at the trial,
Raymond Doran had testified that Back had come by the
office "one night late" and said he was going to Florida.
The time tickets , which Thomas testified he had not
checked for a while , were not produced to dispute Back's
testimony that it was several weeks earlier that he was sent
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home one Saturday.) Thus I find that Manager Thomas, in
attempting to justify his discharge of Back, seized upon an
earlier incident when Back was punished for reporting late
on Saturday morning, and gave a fabricated account about
Back not reporting again for work (except on one Saturday)
for nearly 2 weeks thereafter. I note that when Thomas was
asked if he held it against Back at the time of the discharge
for "that time that he came in late and you sent him home
and reprimanded him," Thomas positively answered, "No.
No, sir." Thomas also testified that Back did a good job
washing the trucks.
After considering all the evidence, I find that Radco had
already corrected Back's tendency to report late on
Saturday for work, and that Back was a satisfactory
employee until Manager Thomas learned on April 14 that
he was supporting the Union and told him that he was
"really going to be in some trouble" when Robert Doran
told Richard Doran. Then as the credited testimony shows,
Thomas refused on two successive days to allow Back to
work, and on the third day, told him that Richard Doran
had said for him "to take a little vacation until this union
trouble was over." I find, as alleged in the complaint, that
Radco discharged and refused to reinstate Back because of
his union support, in violation of Section 8(a) (3) and (1) of
the Act.
CONCLUSIONS OF LAW
1. By threatening an employee with trouble if he
attended a union meeting and by threatening him with
discharge if he became involved with a union, the Company
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a) (1) and Section 2(6) and
(7) of the Act.
2. By discriminatorily discharging Gregory Back on
April 17 and thereafter refusing to reinstate him, the
Company violated Section 8(a) (3) and (1) of the Act.
3. The General Counsel failed to prove that the
Company coercively interrogated an employee.
THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that the Respondent be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees' Section 7 rights: to
take certain affirmative action, including the offering of
reinstatement to Gregory Back, with backpay computed in
the manner set forth in F. W. Woolworth Company, 90
NLRB 289, plus interest at 6 percent per annum as
prescribed in Isis Plumbing & Heating Co., 138 NLRB 716;
and to post appropriate notices.
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, Radco Enterprises, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for joining or supporting Truck Drivers, Chauf-
feurs and Helpers Local Union No. 100, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
(b) Threatening any employee with trouble if he attends a
union meeting.
(c) Threatening any employee with discharge forjoining
or supporting a union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Gregory Back immediate and full reinstatement
to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole
in the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Notify the above-named person if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and Universal Military Training and
Service Act, as amended, after discharge from the Armed
Forces.
(c) Preserve and make available to the Board, or its
agents, upon request, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(d) Post at its shop and office in Cincinnati, Ohio, copies
of the attached notice marked "Appendix.' 12 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.3
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
2 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall , as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
becomes its findings , conclusions, and order and all objections thereto shall
be deemed waived for all purposes. 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 be changed to read "POSTED PURSUANT
TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS
ENFORCING AN ORDER OF THE NATIONAL LABOR RELA-
TIONS BOARD,-
3 In the event that this recommended Order is adopted by the Board, this
provision shall be modified to read . "Notify the Regional Director for
Region 9, in writing , within 10 days from the date of this Order , what steps
the Respondent has taken to comply herewith "
RADCO ENTERPRISES, INC.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal law by threatening an
employee with trouble and discharge if he attended a union
meeting and supported a union , and by later discharging
the employee after learning that he was supporting the
union.
WE WILL OFFER Gregory Back full reinstatement and
pay him for the earnings he lost as a result of his April
17, 1970, discharge , plus 6 percent interest.
WE WILL NOT discharge or discriminate against any
employee for supporting Teamsters Local 100, or any
other union.
WE WILL NOT threaten any employee with trouble if
he attends a union meeting.
WE WILL NOT threaten any employee with discharge
forjoining or supporting a union.
281
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
Dated By
RADCO ENTERPRISES, INC.
(Employer)
(Representative (Title)
NOTE: We will notify the above-named discharged
employee , if presently serving in the Armed Forces of the
United States , of his right to full reinstatement upon
application , in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions , may be directed to the Board 's Office, Room
2407, Federal Office Building , 550 Main Street , Cincinnati,
Ohio 45202, Tel. 513-684-3686.