Redwood Empire, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1989

296 N.L.R.B. 369 (N.L.R.B. 1989)

REDWOOD EMPIRE
Redwood Empire , Inc. and Freight Construction,
General Drivers, Warehousemen & Helpers,
Teamsters Local 287, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen &
Helpers of America , AFL-CIO. Case 32-CA-
8517
August 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 23, 1988, Administrative Law Judge
Roger B. Holmes issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions
and a brief in opposition to the General Counsel's
exceptions and in support of its cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Redwood
Empire, Inc., Morgan Hill, California, its officers,
agents, successors , and assigns, shall take the action
set forth in the Order.
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In adopting the judge's drawing of adverse inferences from the Re-
spondent 's failure to call its supervisor , James Langjahr , to testify con-
cerning certain conversations in which he took part , we rely on the
Board 's decision in International Automated Machines, 285 NLRB 1122
(1987).
In adopting the judge's finding that the Respondent interrogated em-
ployees in violation of Sec . 8(a)(1), Member Cracraft does not rely on
Sunnyvale Medical Center, 277 NLRB 1217 (1985).
Barbara D. Davison, for the General Counsel.
Paul V. Simpson, Esq. (Carr, McClellan, Ingersoll, Thomp-
son & Horn), of Burlingame, California, for the Re-
spondent.
Duane B. Beeson, Esq. and Kenneth C. Absalom, Esq.
(Beeson, Tayer, Silbert & Bodine), of San Francisco,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
369
ROGER B . HOLMES, Administrative Law Judge. The
Charging Party, Freight Construction , General Drivers,
Warehousemen & Helpers, Teamsters Local 287, Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, AFL-CIO, filed on 13
November 1986 the unfair labor practice charge in this
case . I usually will refer to the Charging Party in this
decision as the Union. I
The Regional Director of Region 32 of the National
Labor Relations Board , who was acting on behalf of the
General Counsel of the Board, issued on 20 January 1987
the complaint and notice of hearing in this proceeding.
The General Counsel alleged that the Respondent, Red-
wood Empire, Inc., had engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3 ) of the Act.
Counsel for the General Counsel further amended the
complaint on the first day of the hearing . The Respond-
ent filed an answer to the General Counsel's complaint;
denied that the Respondent had engaged in the alleged
unfair labor practices ; and raised an affirmative defense.
The Respondent further answered at the hearing the
amendments made by the General Counsel. I usually will
refer to the Respondent in this decision as the Employer.
I heard the evidence in this proceeding at the hearing
which was held on 5 days on 11 through 15 May 1987 at
San Jose, California . The time for filing posthearing
briefs was extended to 8 July 1987.
Both counsel for the General Counsel and the attorney
for the Respondent filed posthearing briefs. Thereafter,
the Respondent filed on 10 July 1987 a motion to strike
footnote 18 from the General Counsel's brief, and the
Respondent also requested that it be awarded one-half
hour in attorney 's fees for the preparation of its motion.
On 22 July 1987 the General Counsel filed an opposition
to the Respondent 's motion and, in addition , the General
Counsel simultaneously filed a motion to strike three por-
tions of the Respondent 's posthearing brief. On 10
August 1987 I advised the parties that I would rule on
both motions when the decision in this case was pre-
pared and issued.
With regard to the Respondent's motion to strike, I
find that General Counsel 's Exhibits 13 and 14, which
are the prehearing statements without exhibits attached
of Roger Burch and Austin Vanderhoof, were received
only for a limited purpose . That purpose was to compare
the words which are contained in both documents. These
statements were not received for any substantive purpose
or any other purpose . (See Tr. pp. 325-327.) I find that
the General Counsel's argument that, "Nowhere in either
Burch's or Vanderhoofs pre-hearing affidavit is there
mention of Burch first discussing the insurance problems
with Vanderhoof," and the conclusion the General
Counsel urges from that argument are beyond the limited
i Subsequent to the hearing in this proceeding , the Teamsters Interna-
tional Union was readmitted to the AFL-CIO on I November 1987. In
accordance with the Board's decision in Yolo Transport, 286 NLRB 1087
fn 1 (1987), the name of the Charging Party has been amended to reflect
that change
296 NLRB No. 49
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
purpose for which the documents were received. As in-
dicated by the transcript pages cited above, the purpose
was to compare the words contained in the documents
and not to look for matters omitted from the documents.
Accordingly, I grant that part of the Respondent's
motion to strike footnote 18 of the General Counsel's
posthearing brief. I deny that part of the Respondent's
motion which requests that it be awarded attorney 's fees.
I conclude the General Counsel has not engaged in "friv-
olous litigation" as that term is used in Tiidee Products,
194 NLRB 1234 ( 1972). See the Board 's decision in Asso-
ciacion Hospital del Maestro, 267 NLRB 237 (1983).
With regard to the General Counsel 's motion to strike
three portions of the Respondent 's posthearing brief, I
note that the Respondent did not oppose the General
Counsel 's motion. I grant a portion of the General Coun-
sel's motion set forth in paragraph 1 of that motion be-
cause the transcript pages cited by the General Counsel
show that Richard Weaver was not involved in those
two incidents . Thus, I grant the portion of the motion to
strike the references to Weaver on lines 15, 19, and 24 of
page 18 of the Respondent 's posthearing brief as being
matters not in the record of the proceeding . For the
same reason , I reach a similar conclusion with regard to
paragraph 2 of the General Counsel's motion. The tran-
script pages cited by the General Counsel support her
motion as to lines 5 through 8 on page 19 of the Re-
spondent 's posthearing brief. I grant the General Coun-
sel's motion set forth in paragraph 2. However , General
Counsel's Exhibit 8 did establish that Steven Bennett
signed a union authorization card . I also grant paragraph
3 of the General Counsel's motion . The first sentence of
footnote 23 on page 34 of the Respondent 's posthearing
briefs contains argument which is outside the record.
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
The Employer has been at all times material a Califor-
nia corporation with an office and place of business lo-
cated in Morgan Hill, California. The Employer is en-
gaged in the remanufacturing and nonretail distribution
of lumber . During the 12 months preceding the issuance
of the General Counsel's complaint, the Employer pur-
chased and received goods or services valued in excess
of $50,000 directly from suppliers located outside the
State of California.
Based upon the pleadings and the evidence presented
in this proceeding, I find that the Employer has been at
all times material an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Based on the pleadings and the evidence presented in
this proceeding, I find that the Union has been at all
times material a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The findings of fact in this decision are based on cred-
ited portions of the testimony of the 11 witnesses who
testified at the hearing ; on documentary evidence intro-
duced by the parties at the hearing ; and on stipulations
of fact entered into by the parties . In making credibility
resolutions, I primarily considered the demeanor of the
witnesses as they testified at the hearing . I also consid-
ered the witnesses ' perception , their memory , and their
ability to relate past events accurately . In addition, I con-
sidered the consistency of the witnesses ' testimony and
the probability of the witnesses ' testimony . In crediting
certain portions of the witnesses ' accounts , I have been
guided by the holding that it is common that a trier of
fact will believe some of the testimony of a witness, but
not necessarily believe all of the witness ' testimony.
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d
Cir. 1950).
In alphabetical order by their last names , the 11 wit-
nesses who testified at the hearing are : George Ander-
son, who is a former truckdriver of the Employer and an
alleged discriminatee ; Roger Alan Burch , who is the
owner of Pacific States Industries and the president and
chief executive officer of the Employer; Jerry Caswell,
who is a former truckdriver of the Employer; William
Gulermovich, who is a former truckdriver of the Em-
ployer and an alleged discriminatee ; Dawn Hoffman,
who is an applicant for employment with the Employer;
Dan Naughton , who is general manager of the Employ-
er; Ralph Rodriguez-Berriz, who is a business agent of
the Union ; Carlos Santos, who is a former yard manager
of the Employer; Austin Vanderhoof, who is executive
vice presdient of the employer; George Vazquez, who is
a former truckdriver of the Employer and an alleged dis-
criminatee ; and Richard Weaver, who is a former truck-
driver of the Employer and an alleged discriminatee.
A. The Events Prior to 1984
Roger Burch began in business about 20 years ago as a
contractor who performed various odd jobs. After his
first year in business , the net worth of his business was
between $4000 and $5000 . He developed his business into
installing residential fencing, and he later went into in-
stalling tract fencing . Burch then owned a retail lumber
yard ; next a remanufacturing plant ; then he went into the
wholesale lumber business ; and next he added a sawmill
business . Burch estimated at the hearing that he probably
devoted between 60 hours and 80 hours a week to his
businesses over the past 20 years.
In 1972 or 1973 and before his business was incorpo-
rated, one of Burch's trucks was involved in an injury
accident. The amount of injury exceeded Burch's insur-
ance liability limit. As a result, Burch had to pay be-
tween $30,000 and $40,000 plus a portion of the attor-
ney's fees out of pocket . Burch's out-of-pocket expenses
from that accident amounted to between 20 to 25 percent
of the net worth of his business. a
In October 1974 the Employer acquired what is
known as mill number 1 at its Cloverdale facility. Since
then the Employer has made significant improvements to
the mill. Austin Vanderhoof estimated that the Employer
2 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Burch
REDWOOD EMPIRE
had spent about $25,000 over the last few years in ex-
panding that part of the facility.3
Around 1976 or 1977 a Teamsters union attempted to
organize the employees of the Employer at the Clover-
dale facility , but the union lost the election.
Sierra Lumber, one of the companies of Pacific States
Industries , has had a collective-bargaining relationship
with a union for at least 15 years . At the time of the
hearing there were 40 persons employed at Sierra
Lumber.4
In 1980 the Employer purchased for approximately
$375,000 what is known as the Irvington Trim Line for
the building known as mill number 2 at its Cloverdale fa-
cility . The Employer also spent another $75 ,000 to con-
struct the building . The Employer also spent approxi-
mately $40,000 for a sawdust collection system and
$25,000 for an ammonia treatment plant. 5
In 1981 Pacific States Industries became a holding
company for several businesses . Burch has been the
owner of Pacific States Industries since its inception as a
holding company.6
Dan Naughton entered the lumber business in 1970.
He had a retail lumber yard for a year , and then he was
a partner for 9 years in a redwood specialty moldings
product business . In February 1980 Naughton began
working in a sales capacity for the Employer in Clover-
dale. Naughton was hired by Unit Manager Marty 01-
hiser . In October 1980 at the request of Roger Burch,
Naughton relocated to the Employer 's Morgan Hill facil-
ity, and he became the sales manager there . Around 1983
Naughton was promoted to unit manager of the Employ-
er's Morgan Hill operation.
As early as 1983 Burch and Naughton had discussions
concerning the consolidation of the Employer's trucking
operations . Among the matters they discussed were
having common inventories of products instead of dupli-
cate inventories . At the hearing Naughton said that there
had been a division of sales territories between the Clo-
verdale and the Morgan Hill sales operations . Often-
times, there had been overlaps in servicing the accounts
of the two operations . Naughton explained that the Clo-
verdale facility would send less than full truckloads to
customers who would have been better serviced by
trucks from the Morgan Hill facility. He gave as an ex-
ample a situation where the Cloverdale facility would
have sold two units of lumber to a customer in Salinas,
California. Two units of lumber would fill only about 25
percent of the capacity of a trailer. Nevertheless , if such
a sale were made, the Cloverdale facility would trans-
port that lumber to the Salinas customer , even though
Salinas was much closer geographically to Morgan Hill.
In Naughton 's opinion , that situation did not allow the
Employer to operate its trucks efficiently. However,
Naughton attributed the foregoing situation to the divi-
a The foregoing findings are based on credited portions of the testimo-
ny of Vanderhoof
4 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Burch
5 The foregoing findings are based on credited portions of the testimo-
ny of Vanderhoof
6 The foregoing findings are based on credited portions of the testimo-
ny of Burch
371
sion of the sales territories by the Employer. Naughton
described the Employer's salespersons as being jealous of
their sales territories.
Naughton said that he and Burch also discussed such
concepts as early as 1983 as to how they could better
utilize the plant, equipment , and inventories.
Over a period of 4 or 5 years Naughton and Burch
also discussed the "hub concept" as it would be applied
to the Employer's trucking operations . Naughton consist-
ently had favored the idea of having all of the Employ-
er's trucking equipment based in one facility for the pur-
poses of maintenance , of efficiency, of dispatch, and of
ease in servicing the Employer's customers . Naughton
expressed his views to Burch, who Naughton said also
shared those views. Nevertheless, the Employer did not
implement those ideas at that time.?
B. The Events in 1984
During 1984 certain events in the lumber industry in-
volving other companies in the Bay Area influenced the
Employer's consideration of a plan to consolidate the
Employer's operations . During that year Louisiana Pacif-
ic closed its distribution facility in Fremont, California,
and relocated that company 's operation to Cloverdale.
Champion Building Products 1984 closed in its distribu-
tion facility in Santa Clara, California, and consolidated
its operations in Reno, Nevada . Capital Lumber Compa-
ny began construction of a lumber remanufacturing plant
in Healdsburg , California , which is located near Clover-
dale in Sonoma County. Simpson Building Supply closed
its operations in Santa Clara in April 1984. Subsequently,
in 1985 San Jose Forest Products began establishing a
lumber remanufacturing facility and yard in the Clover-
dale area, which facility was completed either later that
year or early the next year.
In 1984 Vanderhoof participated in discussions about
consolidating the Employer's operations at its Cloverdale
facility.8
From June or July 1984 to May or June 1986 Carlos
Santos was employed by the Employer as yard manager.
It was stipulated that Santos was a supervisor within the
meaning of Section 2(11) of the Act during the time of
his employment by the Employer. The drivers from the
Employer's Cloverdale facility brought trailer loads of
materials to the Employer's Morgan Hill facility and
dropped the trailers there . Morgan Hill personnel then
reloaded another set of trailers with materials , and the
Cloverdale drivers delivered those materials to customers
on their way back to Cloverdale. According to Santos,
during that period of time, it was rare for the Employer's
Cloverdale drivers to deliver to customers south of
Morgan Hill. The Cloverdale drivers did that when the
Morgan Hill drivers were away from Morgan Hill and a
customer was complaining about not receiving his order
of materials.9
7 The findings of the foregoing paragraphs are based on credited por-
tions of the testimony of Naughton.
I The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof
9 The foregoing findings are based on credited portions of the testimo-
ny of Santos and a stipulation.
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Santos gave two conflicting accounts of when he had
a conversation with Steven Bennett about union activi-
ties. Santos first said that conversation took place about
6 months after Santos began working for the employer.
Because Santos began his employment with the employer
in June or July 1984, that would mean the conversation
took place in December 1984 or January 1985. Later on
in his testimony, Santos said that the conversation took
place in the latter part of 1985 or the early part of 1986.
If that were true, the conversation would have occurred
about 18 months after Santos began his employment. I
find his first account of when this conversation occurred
is more probable because Santos expressed it in terms re-
lating to the start of his employment, i.e., about 6 months
afterwards.
At the time of their conversation, Santos was the su-
pervisor of Bennett. Santos was the yard manager at the
Employer's Morgan Hill facility at that time. Bennett
was a forklift driver for the Employer at that time. Ben-
nett approached Santos one morning at the Employer's
Morgan Hill location. Just those two persons were
present during their conversation. Bennett told Santos
that the drivers had talked with Bennett the previous
night. Bennett informed Santos that the drivers were get-
ting together in order to try to "unionize" the company,
and the drivers had tried to get Bennett to sign his name
on a piece of paper which stated that they would accept
the union at the company. Santos asked Bennett what
Bennett wanted Santos to do about it. Bennett replied
that he would like for Santos to talk to the drivers or
Santos to tell management what the drivers were doing
because Bennett "wanted to be n[o] part of them."10
As a result of the foregoing, Santos informed
Naughton about what Bennett had told him. Naughton
and Santos then went to see Roger Burch in his office.
Just those three persons were present in Burch's office
during their conversation. Santos said at the hearing that
their conversation lasted for an hour or an hour and a
half. Naughton asked Santos to repeat what Santos had
told Naughton. Santos did so. Burch asked if that was
what they were doing. Santos replied yes, and that is
what Bennett had explained to him. Burch told them:
"I'll tell you what . . . [i]f they're going to go through
with than plan . . . I'll shut down this damn Morgan
Hill operation . . . the truck drivers, and fire them all,
and move them up to Cloverdale." Burch added that he
would rather lose money by moving them up there than
have the yard unionized. Burch said he was not going to
allow the Union to go in there no matter what and under
any circumstances. Later in his testimony Santos Added
that Burch also said: "I don't want this shit going on in
my yard." t t
Santos stated that "in a roundabout way" Burch and
Naughton both indicated to Santos to let the drivers
know that the Employer would fire the drivers and shut
down the Morgan Hill operation if the drivers continued
with this. As a result, Santos believed that he mentioned
is The foregoing findings are based on credited portions of the testi-
mony of Santos . Bennett did not testify at the hearing
i i In his prehearing affidavit Santos used the word "crap" instead of
"shit." Santos explained the inconsistency at the hearing by stating that
he had done so because he was giving his affidavit to a lady.
the foregoing matters to a truckdriver who he identified
only by his first name of George. Santos spoke to
George either that same day or the next day at work.
Santos told George that Burch had found out about their
meeting , and that Burch had told Santos that Santos was
supposed to relay this to somebody else. Santos also told
George that Burch would either terminate one of the
drivers or terminate all of them if the drivers persisted in
going to union meetings and trying to unionize. t 2
At the hearing Santos did not recall that any drivers
or yard employees were terminated by the Employer fol-
lowing the foregoing events. Other than his conversation
in Burch's office with Burch and Naughton, Santos did
not have any discussions with anyone in management
about discontinuing the trucking operation at Morgan
Hill during the entire time of his employment with the
Employer. Santos did not have any discussion with
anyone in management about relocating the trucking op-
eration in Morgan Hill to Cloverdale. According to
Santos, Burch did not like for the drivers to socialize; to
get too close to each other; to talk with each other; and
to know where the drivers were going to the next day in
order to prevent the drivers from meeting each other on
the road. Santos described the foregoing practice as a
"little game that they used to play."13
C. The Events in 1985
In 1985 the Employer acquired an additional 9 acres
adjoining its Cloverdale facility at a cost of approximate-
ly $110,000 . In 1985 the Employer spent an additional
$75,000 to $80 ,000 to engineer that area for proper drain-
age. The Employer also spent $20,000 to asphalt a driv-
ing lane off of Highway 101.
On 12 February 1985 a meeting of the Employer's
upper level management was held . Among other things,
Burch talked about the establishment of a remanufactur-
ing center for the Employer 's wholesale division at the
Cloverdale facility. Burch also talked about negotiations
for the purchase of a sawmill , and that he hoped to have
the purchase completed by 30 June 1985. Burch in-
formed those at the meeting that the Employer had just
purchased 9 acres adjacent to its Cloverdale facility for
the purposes of expansion . Burch said the Employer had
is The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Santos . Burch said at the hearing that he did not
recall ever having a conversation with Santos in which Burch told
Santos words to the effect that Burch did not care how much money
Burch lest , and Burch would shut down the Employer before Burch
would allow the Employer to go union While Burch did not recall the
foregoing , he did not specifically deny the account given by Santos
Naughton said at the hearing that he did not recall having a conversation
concerning unions with Santos in Burch 's office.
I also have considered the fact that Santos later quit working for the
Employer, and I have considered the reaspns he gave for doing so. In the
opinion of Santos, he was required to work too many hours. He also said
at the hearing that promised raises had not been given to him. Santos
thought he had given that additional reason to an NLRB agent when
Santos gave his prehearing affidavit, but that reason is not in his affidavit.
Instead , the other reason given in his affidavit was that he had to com-
mute to work in Morgan Hill from Salinas Notwithstanding the forego-
ing difference and the differences Santos gave in the date of his conversa-
tion with Bennett , I found Santos' version to be credible.
is The foregoing findings are based on credited portions of the testi-
mony of Santos
REDWOOD EMPIRE 373
completed the rocking , grading, and engineering for
drainage purposes on those 9 acres . Burch said that the 9
acres would be used for the drying of green lumber. At
the hearing Vanderhoof explained that dry lumber had a
higher value , and that it is used primarily for interior
construction.
Burch also told those at the meeting that the Employ-
er was going to establish a trucking operation at Clover-
dale for the purposes of hauling lumber in and out of
Cloverdale; that the Employer would establish an impor-
tant part of the distribution chain there ; and that it was a
centralized spot for trucking . While the subject of con-
solidating the Employer 's trucking operators was dis-
cussed at the meeting, there was no discussion as to what
would happen with regard to the employment of the
Morgan Hil truckdrivers.
Burch also told those at the meeting that he had con-
tacted a person with regard to purchasing tires in bulk
for the Employer's tractors and trailers . Burch said, if
that program was efficient , it could be the beginning of
centralized purchasing for truck and forklift equipment.
Respondent's Exhibit 7 is a copy of a portion of the
agenda for the 12 February 1985 management meeting.
The document contains Burch 's handwritten notations.14
General Counsel 's Exhibit 21(a) was prepared in 1985
for the Employer 's fiscal year 1986, which encompasses
the period of time from 1 April 1985 to 31 March 1986.
General Counsel 's Exhibit 21(a) contains the mission, ob-
jectives , and goals of G & R Lumber Company for the
Employer's fiscal year 1986. G & R Lumber Company
was a division of Redwood Empire at Cloverdale, and it
had an autonomous manager at that time. One of the
goals was to "have one truck and trailer operational for
LCL deliveries by April 15, 1985. Evaluate Cloverdale
as a hub for truck operations ." Another one of the goals
was to "study potential centralized maintenance facility
at Cloverdale....11 15
General Counsel's Exhibit 21(f) is a copy of the Em-
ployer's 1986 pro forma business plan. The date on the
document should be 1 April 1985.16
Respondent's Exhibit 8 is a copy of a document enti-
tled "Pacific States Industries Fiscal Plan 1986." It was
prepared in February and March 1985. Among other
things, the document refers under the heading "Expand
and exhance existing facilities " to the 9 acres which were
to be added at Cloverdale; the purchase of a truck for G
& R Lumber; the 18,000-foot warehouse which was an
addition at G & R Lumber ; and a sawmill to be estab-
lished within 18 months and to process 15 million to 20
million feet of lumber a year.17
In February 1985 Richard Weaver began working for
the Employer as a truckdriver at the Morgan Hill facili-
ty. He was hired by James Langjahr and Naughton. His
starting rate of pay was $7 . 10 an hour. Weaver received
a 35-cent-an-hour raise 1 year and 2 months later. Noth-
ing was said to Weaver to indicate that the job was tem-
14 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof and on documentary evidence.
15 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence.
16 The foregoing findings are based on documentary evidence.
17 The foregoing findings are based on documentary evidence.
porary. Weaver was told that the job would continue as
long as Weaver did a good job. He also was told that the
would have a profit-sharing plan after 4 years. Weaver
delivered lumber from the Employer 's Morgan Hill facil-
ity as far south as Los Angeles.
While Weaver was employed by the Employer, the
truck he drove required routine maintenance . Occasion-
ally, Weaver himself did that maintenance . In addition,
maintenance was done at Coast Counties in San Jose and
Gilroy Equipment Rental in Gilroy, California. On one
occasion Weaver was at the Employer's Cloverdale facil-
ity, and he was waiting for a load. With the help of a
mechanic named Pat , Weaver changed the oil in his
truck. 18
In March 1985 George Anderson began working for
the Employer as a truckdriver . He was hired by Lang-
jahr at the rate of pay of $7.10 an hour. During Ander-
son's employment by the Employer, he delivered lumber
as far south as the Los Angeles area.
While Anderson was employed by the Employer, the
truck which he drove needed minor repairs . Anderson
did some repairs , but usually Coast Counties in San Jose
did the major repairs . Rountine maintenance originally
was done by Bennett . Afterwards, a maintenance compa-
ny performed that work.
The subject of wages was a source of concern to the
drivers and the yard employees during the time that An-
derson worked for the Employer. He knew of drivers
who had quit working for the Employer because the
drivers were unhappy with their wages." e
During 1985 there were a couple of meetings with
Naughton , Langjahr, and Santos regarding plans for
1986 at the Morgan Hill facility . Sometimes Vanderhoof
also was present. There was no discussion with Santos at
those meetings about closing down the trucking oper-
ation at Morgan Hill. They talked about adding more
trucks to the Morgan Hill fleet and having to hire more
individuals. Santos recalled that Vanderhoof said that the
Employer had purchased four new trucks. Three of
those trucks would be added to the Morgan Hill fleet,
and one truck was to be added to the Cloverdale fleet.20
Around June or July 1985 Santos was present when
James Langjahr, the dispatcher and a statutory supervi-
sor, asked someone about establishing a maintenance
shop at the Employer's Morgan Hill location . Santos said
at the hearing that he did not know who the other indi-
vidual was, but Santos believed that individual was
Naughton . Santos said the person replied to Langjahr
that it would be more feasible to have the maintenance
shop at Morgan Hill because there were so many trucks
there and not enough trucks at Cloverdale.21
In July 1985 Weaver participated in drafting a letter to
the Employer . A meeting was held at his house on a Sat-
urday for that purpose. The letter asked for more money
18 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Weaver
19 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Anderson
40 The foregoing findings are based on credited portions of the testi-
mony of Santos.
21 The foregoing findings are based on credited portions of the testi-
mony of Santos. Langjahr did not testify at the hearing.
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and benefits for the drivers. All the Employer's drivers
at that time signed the letter.
On a Monday or a Tuesday after the letter had been
drafted , Weaver had a conversation with Naughton in
Naughton 's office . Langjahr also was present . Naughton
called Weaver into his office , and Naughton indicated
that he thought that Weaver had passed a letter around
on company time . Naughton told Weaver that they
would not stand for talking union or for getting up a
letter of that sort on company time . Naughton also told
Weaver that Weaver would not get any more money
than he was receiving then and especially because
Weaver had been working for the Employer only 5 or 6
months at that point in time . Naughton then told Weaver
"There's the door." Weaver asked Naughton if he was
fired . Naughton replied that it was up to Weaver wheth-
er Weaver wanted to quit or to not do so.
At a company picnic in July 1985 in Cloverdale,
Weaver had a conversation with Langjahr. George An-
derson also was present during that conversation.
Weaver aksed Langjahr if it was possible for Weaver to
transfer to Cloverdale if they ever needed another driver
in Cloverdale . Langjahr replied that "it might be possi-
ble." Weaver said he would be willing to move to Clo-
verdale, and his wife would be willing to relocate to the
Santa Rosa branch of the bank for which she worked.22
In 1985 the Employer purchased sawmill equipment
for its Cloverdale facility . The equipment was received
at Cloverdale in the late summer of 1985.
During the late winter months of 1985 work on the
material storage area at the Employer's Cloverdale facili-
ty was completed.23
D. The Events in 1986 Prior to November 1986
Either in January 1986 or late February 1986, Weaver
had a conversation with Naughton in Naughton's office.
Langjahr also was present . Langjahr was the one who
called Weaver into the office. Naughton had received a
letter in the mail which the truckdrivers had drafted and
signed in July 1985 . Naughton asked Weaver if Weaver
had anything to do with the letter , and whether Weaver
had sent it . Weaver told Naughton that he had not sent
it, and he informed Naughton that Jerry Caswell had
sent the letter . Naughton asked Weaver how he knew
that. Weaver replied that he knew that Caswell had the
letter in his possession ; that Weaver had talked to Cas-
well; and that Caswell had told Weaver that Caswell had
sent the letter to Naughton , Naughton then told Weaver
that, if anything like this ever happened , Burch would
shut the place down.24
22 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Weaver
23 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof
24 The foregoing findings are based on credited portions of the testi-
mony of Weaver. Naughton acknowledged that he had received a letter
from the Morgan Hill truckdrivers concerning the need for improvement
in their wages, hours, and working conditions. However, Naughton be-
lieved he received the letter in August or September 1986. In Naughton's
version , he asked separately Langjahr and employee John Gobeille if
each one knew anything about the letter , and each one indicated that he
did not As indicated above , I have credited Weaver 's account
Anderson had signed a letter to the Employer con-
cerning the employees ' wages and working conditions.
Anderson had been present at the meeting when the
letter was prepared . Sometime later Langjahr told An-
derson that he would tell Anderson something, but if
Anderson said anything, Langjahr would deny it. Then
Langjahr told Anderson that, if anyone ever tried to get
the Union in or a raise , Burch would not stand for it.
Langjahr told Anderson that Burch would go to any
extent to keep the Union out.25
During the latter part of January 1986 the Employer
was able to increase its insurance coverage for bodily
injury and property damage from $300,000 to $ 1 million.
Burch, however, was not happy with those insurance
limits . Nonetheless , from January to November 1986, the
Employer did not have umbrella insurance coverage for
liability purposes on its trucks.26
Pacific States Industries is a holding company for five
different corporations . Respondent 's Exhibit 4 is an orga-
nizational chart of Pacific States Industries , Inc. and its
five subsidiary corporations . Respondent 's Exhibit 5 lists
the nature of the business of each of the five corpora-
tions as of 1986. The document indicates : Redwood
Empire, Inc., sawmill , remanufacturing and wholesale
distribution ; Sierra Lumber, Inc., specialty , constructing,
wholesale, retail , and contractor ; Empire Lumpire, Inc.,
contractor, wholesale, and retail; Sierra Fence, Inc., spe-
cialty construction , contractor and retail; and Pacific
States Development , property management and develop-
ment.
Respondent 's Exhibit 6 lists the names and positions of
the corporate officers of Pacific States Industries and its
five subsidiary corporations . That document was pre-
pared in April 1986. There had been no changes since
then up to the time of the hearing.
Pacific States Industries is headquartered at Morgan
Hill. Burch's office also is located at the Morgan Hill fa-
cility . Burch spends approximately 10 percent of his time
at the Morgan Hill facility, and he spends at least 30 per-
cent of his time in the Cloverdale area . Burch owns 100
percent of the stock of Pacific States Industries. With
regard to the other five corporations , Burch owns 100
percent of the stock of Redwood Empire, Empire
Lumber, and Pacific Development. Burch owns 85 per-
cent of the stock of Sierra Lumber and Sierra Fence.
The consolidated gross volume of sales for all of the
Pacific States Industries companies was approximately
$37 million in fiscal 1986. At the hearing Vanderhoof es-
timated that the gross volume of sales would be approxi-
mately $40 million for fiscal 1987. The gross sales vol-
umes for each of the five corporations in fiscal 1986
were : Redwood Empire, approximately $ 17 million; Pa-
cific States Development , approximately $4 million;
Sierra Fence, approximately $ 3 million; Sierra Lumber,
approximately $8 million ; and Empire Lumber, approxi-
mately $5 million.27
as The foregoing findings are based on credited portions of the testi-
mony of Anderson Langjahr did not testify at the hearing.
26 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
87 The findings of the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof and on documentary evidence.
REDWOOD EMPIRE
On 12 February 1986 the annual management meeting
of Pacific States Industries began in Mexico . The meet-
ing lasted for 7 days . Only the upper level management
personnel attended . At the meeting the consolidation of
operations was discussed . Burch said that he wanted the
inventories at the Morgan Hill and Cloverdale facilities
to be consolidated by the end of the first quarter of fiscal
1987. Burch also said that he wanted the inventory to be
under one management . Burch told the meeting that he
wanted to eliminate the duplication of items and to elimi-
nate the poor rotation of stock in certain items.
With regard to the Employer, Burch told the meeting
that he wanted to consolidate the trucking operations in
Cloverdale . He said he wanted to eliminate any confu-
sion as to where the trucks would be departing from; as
to what mills the trucks would haul from; and as to what
customers would be serviced by certain trucks. Burch
said he wanted to improve the efficiency of maintenance
and to try to reduce the trucking operations in general
between Morgan Hill and Cloverdale.
Burch discussed the upcoming production which
would be generated by the Employer's sawmill and the
need for a consolidated effort to move that production.
He discussed the scheduling of incoming logs and how
that would have an effect on the trucking operations.
Burch also discussed territorial boundaries and invento-
ries . In the opinion of Vanderhoof, Burch felt that the
trucks were a minor part of the consolidation efforts.
A timetable for the consolidation of the trucking oper-
ations was to be sometime during fiscal year 1987. The
hope was that the consolidation of the employer's truck-
ing operations would occur sometime between the end of
the first quarter of fiscal 1987, when it was hoped that
the inventories would be consolidated , and the end of
the second quarter of fiscal 1987, when it was hoped that
the sawmill would be on line. However, Vanderhoof said
that the foregoing expectations were not expressly dis-
cussed at the management meeting, but that Burch did
discuss them with Vanderhoof later. The Employer's
fiscal year 1987 was from 1 April 1986 through 31
March 1987. Burch did not say that the consolidation of
the trucking operations would result in the firing of the
Morgan Hill drivers . There was no discussion at the
management meeting about terminating the Morgan Hill
drivers. a 8
At the hearing Naughton said that he did not envision
that the Morgan Hill drivers would be transferred to
Cloverdale because that had not been the Employer's
policy to transfer hourly employees from one location to
another location except in rare instances. Naughton esti-
mated at the hearing that the distance between the Em-
ployer's Morgan Hill facility and the Employer's Clover-
dale facility was approximately 225 miles.
At the 1986 management meeting Burch told
Naughton and Marty Olhiser, who was unit manager at
G & R Lumber in Cloverdale, that the trucks would be
consolidated by the end of the fiscal year, and that they
should start planning for that. The fiscal year Burch was
referring to was the Employer's 1987 fiscal year. In the
28 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof.
375
opinion of Naughton , the Employer 's trucking operation
was a minor subject of discussion at the management
meeting in terms of the amount of time spent talking
about it.
General Counsel 's Exhibit 21 contains some handwrit-
ten notes made by Naughton . Naughton explained his
handwritten notation regarding item 8 on the page
headed "Territories." The item reads : "LCL Trucking-
distribution of such ." Naughton said at the hearing that
his notation meant that he had proved that the sales and
operational processes at the Morgan Hill facility had
been successful , and that his intention was to be more
cooperative towards the Cloverdale facility in achieving
its goals, and to assist that facility to be successful re-
gardless of the cost to the profit -and-loss statement of the
Morgan Hill facility.
General Counsel 's Exhibit 21(c) is a copy of a docu-
ment entitled "1987 Pro Forma Business Plan." It is
dated 1 April 1986. Item 6 on page 5 of General Coun-
sel's Exhibit 21(c) states : "6 Yard Manager and Traffic
Manager to be responsible to perform within budget
guidelines 4/1/86 a . Centralize truck operations and
truck dispatching."
Naughton explained at the hearing that the date
"4/1/86" meant that the process of performing within
budget guidelines would begin on the first day of the
1987 fiscal year . Naughton further explained at the hear-
ing that the reference to centralizing the truck operations
and dispatching meant that the trucks would be central-
ized at the Cloverdale facility and that the truck dis-
patching would be consolidated . At that time Naughton
said there were seven trucks located at the Morgan Hill
facility and three Morgan Hill trucks located at Clover-
dale.2 s
General Counsel's Exhibit 21(b) is a copy of the
agenda for discussion at the annual management meeting
which was held beginning on 12 February 1986. The
first item for discussion was a change in the Employer's
name . Among other things, the notes of the discussion
indicate that G & R Lumber Company would change its
name to Redwood Empire Inc., a division of Pacific
States Industries by 1 June 1986. The notes also indicate
that a committee was established to expedite the transi-
tion ; to hire a consultant to help in the transition ; to have
a budget of $25,000; and to have as a theme of the
project to promote one company.30
General Counsel's Exhibit 21(d) is a copy of the Em-
ployer's "Operating Plan" for its fiscal year 1987. The
first objective listed on the document was "to change the
name of G & R Lumber to Redwood Empire, Inc."
General Counsel's Exhibit 21(g) is a copy of the Em-
ployer 's mission , objective , and goals for its fiscal year
1987. Among other things, a listed goal of the Employer
was to "establish centralized vehicle maintenance facility
at Cloverdale by 6/86."
Respondent's Exhibit 12 is a copy of a document enti-
tled, "Pacific States Industries Fiscal Plan 1987 Mission,
Goals, and Objectives." Among other things, one of the
29 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Naughton and on documentary evidence
30 The foregoing findings are based on documentary evidence
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
goals for fiscal 1987 was to "consolidate efforts to devel-
op advertising introduction plan of new name for G & R
Lumber to Redwood Empire."'
In February 1986 the Employer began installing a ma-
chine shop at its Cloverdale facility . That project was
completed in May 1986. Vanderhoof estimated that the
Employer had spent about $100,000 for the lathe, drills,
and other machine shop items . Prior to that time, the
Employer did not have a machine shop at either Clover-
dale or Morgan Hill. In February 1986 the Employer
also began the erection of a sawmill at its Cloverdale fa-
cility. The total cost for the purchase of the sawmill
equipment ; the transportation of that equipment to Clo-
verdale ; the engineering , and the construction of the
sawmill was in excess of $1.1 million . The building of the
sawmill at Cloverdale was completed for the most part
in September 1986, but it was not fully operational until
about mid-March 1987. At the time of the hearing only a
metal shed remained to be constructed.32
The Employer purchased some of the lumber that it
used in its business from lumber mills other than its own.
Those mills primarily were located in Northern Califor-
nia. Most of the time the Employer transported the
lumber it bought from those mills either to its Cloverdale
facility or its Morgan Hill facility. On occasion the Em-
ployer used subhaulers to transport the lumber to its fa-
cilities . In addition, sometimes the mills delivered the
lumber directly to the Employer either at the Employ-
er's Cloverdale facility or its Morgan Hill facility. Also,
Cloverdale drivers transported lumber from the Employ-
er's Cloverdale facility to the Employer 's Morgan Hill
facility.33
In June 1986 a cab of a truck needed to be repaired.
Naughton went to Sacramento to pick up some new
tractors . While he was there, Naughton had a discussion
with the service manager . Naughton told the service
manager about the cab which needed to be repaired. The
service manager told Naughton that they could not
repair a cab in that condition . The service manager also
told Naughton that it would cost approximately $20,000
to replace the cab . Later in June 1986 Nolan Schweikel
told Naughton the repair work would cost between
$1800 and $2000.34
About July 1986 the maintenance facility at Cloverdale
became operational . Morgan Hill did not have a mainte-
nance facility for trucks.35
In July 1986 an aerial photograph was taken of the
Employer's Morgan Hill facility . Respondent 's Exhibit
10 is that color photograph. The area marked "X" repre-
sents a newly asphalted area. That area was improved in
81 The findings in the foregoing paragraphs are based on documentary
evidence.
32 The findings in the foregoing paragraph are based on credited por-
tions of the testimony of Vanderhoof.
88 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
e4 The conversations were not received for the truth of the matters as-
serted by th.: out -of-courts declarants The foregoing findings are based
on credited portions of the testimony of Naughton.
ss The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
November or December 1986 to improve the layout of
the lumber storage area.36
On 10 July 1986 George Vazquez began working for
the Employer as a truckdriver . He was paid on an
hourly basis . Vazquez started at $7.10 an hour. At the
time he was hired, Langjahr told Vazquez that there
would be no firing or layoffs in Vazquez ' job, and that
later on there would be some big benefits like profit
sharing . No one in management told Vazquez that the
trucking operation at Morgan Hill might be discontin-
ued.S7
At the end of August 1986 Weaver accompanied Van-
derhoof, Naughton, and Langjahr to Sacramento in
order to pick up some new trucks . They went to Sacre-
mento by airplane . Tom Tuttle was the pilot. During
that trip Weaver had a conversation with Langjahr. Just
those two persons were present at the time of their con-
versation. Weaver asked Langjahr why the trucks were
registered in the name of G & R Lumber in Cloverdale.
Langjahr replied they were doing that in order to save
1-percent sales tax. At the hearing Weaver explained that
the sales tax rate was 6 percent in Cloverdale and 7 per-
cent in Morgan Hill.38
A few months before 12 November 1986, Anderson
had a conversation with Bennett regarding the Union.
No one else was present . Anderson was not certain at
the hearing whether his conversation with Bennett was
before or after Bennett became the Employer's yard
foreman. Bennett was loading , and Anderson was tying
down the load during their conversation . Anderson told
Bennett that there had been talk about talking to the
Union . Bennett said that he had heard rumors that, if a
union ever came in there, Burch would just shut the
place down.39
In September 1986 William Gulermovich began work-
ing for the Employer as a truckdriver at $7.10 an hour.
He was hired by Langjahr . Nothing was said to Guler-
movich about his being hired for a temporary position.40
Respondent 's Exhibit 16 is a copy of a letter dated 18
November 1986 from the marketing manager of Fire-
man's Fund Insurance Companies to Vanderhoof. The
letter confirmed that the Employer 's insurance policy
would expire on 1 October 1986, but that Fireman's
Fund would extend the policy until 1 November 1986 at
the reduced limits of $100,000 property and $300,000
combined single limit. Burch wrote a note to Vander-
hoof on that letter. The note stated : "This won't work.
Trucks create too much exposure ." Burch drew a line
from his note to the "reduced limits" portion of the Fire-
man's Fund letter.
At the hearing Vanderhoof said he was keeping up
with the insurance coverage problem on a daily basis,
86 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence
37 The foregoing findings are based on credited portions of the testi-
mony of Vazquez.
38 The foregoing findings are based on credited portions of the testi-
mony of Weaver
88 The foregoing findings aie based on credited portions of the testi-
mony of Anderson Bennett did not testify at the hearing.
40 The foregoing findings are based on credited portions of the testi-
mony of Gulermovich
REDWOOD EMPIRE 377
and he was keeping Burch informed daily of develop-
ments . In the opinion of Vanderhoof, the matter of insur-
ance coverage was "a big issue" with Burch . In the opin-
ion of Vanderhoof, having insurance coverage is very
important to the Employer . In the opinion of Vander-
hoof, it would not make good business sense to operate
the Employer's vehicles without insurance coverage. To
do so would subject the Employer to tremendous liabil-
ity in the event of accidents.
Vanderhoof said at the hearing that he had attempted
to obtain $ 10 million umbrella coverage for the Employ-
er, but he had been unable to do so . None of the insur-
ance brokers he spoke with would submit a quote to
Vanderhoof for a $10 million insurance policy. The in-
surance brokers informed Vanderhoof that the excess
market for umbrella coverage "had all but dried Up' 1141
General Counsel 's Exhibit 18 is a copy of a summary
of accidents and claims against the Employer from 1983
through 1986 . It shows seven such claims in that 3-year
period . Only one of those accidents involved a Morgan
Hill driver. The Morgan Hill driver was Weaver. No
damage was done, and the Employer did not have any
liability insofar as Vanderhoof knew . Three accidents in-
volved Cloverdale driver Ted Babcock.42
In early October 1986 Burch offered the position of
general manager to Naughton . Naughton described the
business purpose of that job to be to consolidate both G
& R Lumber in Cloverdale and Redwood Empire in
Morgan Hill under one manager . Naughton said at the
hearing that he and Burch had believed for many years
that it would better serve the Employer 's interest if both
operations were merged.43
Prior to the transfer of the trucking operations on 12
November 1986, the yard employees at Morgan Hill re-
ported to Steven Bennett, who was their immediate su-
pervisor . The truckdrivers ' immediate supervisor was
Langjahr . In the opinion of Naughton , the truckdrivers
had at the most one-half hour a day contact with the
yard employees. The yard employees operated forklifts
to unload material off the trucks. The truckdrivers assist-
ed in loading and unloading material either on or off the
trucks. The yard employees did not fill in for the truck-
drivers. A truckdriver could on occasion work in the
yard if his truck was in the shop. If a yard employee had
a Class I license, he could move trucks around in the
yard . A Class I license was not required for yard em-
ployees, but it was required for truckdrivers . In the opin-
ion of Naughton, different skills are required to drive the
Employer's trucks than are required to operate the Em-
ployer's forklifts.44
The fringe benefits of the yard employees and the
truckdrivers were the same.45
Ralph Meyer is a truckdriver based in Cloverdale.
Meyer never worked at the Employer 's Morgan Hill fa-
cility . However, the Employer carried Meyer on the
books of Redwood Empire for accounting purposes. At
some point in time, Meyer was transferred to the G & R
Lumber books.46
Jim Moore formerly was a driver for the Employer.
His employment ended 1 or 2 weeks before early No-
vember 1986.47
Prior to 12 November 1986, the drivers who were sta-
tioned at the Employer's Cloverdale facility were: Ted
Babcock; Chuck Doyle; Garret Farris; and John Go-
beille. Farris was hired 11 November 1986. Those driv-
ers were dispatched from the Morgan Hill facility.48
Just before Halloween in October 1986, Dawn Hoff-
man submitted an application for employment with the
Employer. At the time she submitted her application to
the Employer, she was asked for a copy of her drivers
license and her medical card . Hoffman is the fiance of
Gulermovich.49
General Counsel 's Exhibit 15 is a copy of a newspaper
want ad . The Employer placed the want ad in the San
Jose Mercury News beginning on 29 October 1986 and
to run in the newspaper for 12 days or until canceled.S°
The want ad stated:
TRUCKDRIVER: Year around employment.
Medical/Dental/Life insurance available. Class I li-
cense required and 5 years or more experience.
Lumber experience helpful. DMV printout re-
quired. Inquire at Redwood Empire, 10 Madrone
Avenue, Morgan Hill , CA 95037. M-F 9-5 p.m.
E. The Events on 2 November 1986
On 2 November 1986 Burch spoke with Vanderhoof at
Vanderhoof's home. Vanderhoof reviewed with Burch
the comparative quotes that Vanderhoof had obtained
from two insurance companies . Vanderhoof outlined to
Burch what Vanderhoof considered to be "the pluses
and the minuses of each of the quotes ." Burch asked
Vanderhoof for some information that Burch wanted
clarified with regard to the quotes and the conditions.
Vanderhoof informed Burch that the Employer's liability
insurance had expired as of 1 November 1986, and that
the Employer had no insurance coverage at that time.
Vanderhoof also informed Burch on 2 November 1986
that Vanderhoof had not been able to obtain a quote on
a $10 million umbrella insurance policy.
Burch became upset because the Employer's business
did not have any liability insurance coverage at that
point in time . Burch instructed Vanderhoof to put to-
gether the best deal he could and to get it in place.
41 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof and on documentary evidence
42 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence
4s The foregoing findings are based on credited portions of the testi-
mony of Naughton
44 The foregoing findings are based on credited portions of the testi-
mony of Naughton
4s The foregoing finding is based on a stipulation by the parties
46 The foregoing findings are based on credited portions of the testi-
mony of Naughton
47 The foregoing findings are based on credited portions of the testi-
mony of Anderson
49 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof
49 The foregoing findings are based on credited portions of the testi-
mony of Hoffman.
so The foregoing findings are based on a stipulation and on documenta-
ry evidence.
378 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Burch told Vanderhoof that he wanted a $10 million
minimum liability insurance policy for the Employer.
Although Vanderhoof had been working on securing
insurance coverage off and on for a period of a year,
Vanderhoof did not receive the last quote from an insur-
ance company until 31 October 1986. At the hearing
Vanderhoof explained that the Employer had been
unable to meet several of the insurance companies' re-
quirements with regard to Pacific States Industries' con-
struction operations.
At the hearing Burch said that he was familiar with li-
ability risks associated with truck accidents.51
For the purpose of illustrating that Burch 's desire for
$10 million insurance coverage was not unfounded or un-
warranted , the Respondent introduced two reports from
Jury Verdicts Weekly, Volume 30. Respondent 's Exhibit
29 reports a jury verdict in the amount of $8 million in-
volving a truck and auto accident . Respondent 's Exhibit
30 reports a settlement in the amount of $11 million in-
volving a truck and auto accident . The parties stipulated
that there are settlements for lesser amounts of money
reported in the same volume of Jury Verdicts Weekly.52
F. The Events on 3 November 1986
On 3 November 1986 Vanderhoof obtained an insur-
ance policy with Liberty Mutual Insurance Company.
The policy included a $5 million umbrella policy. In
terms of coverage , the Liberty Mutual policy was better
for the Employer than the Fireman 's Fund policy had
been . Vanderhoof signed the Liberty Mutual policy on 3
November 1986. That policy was retroactive to 1 No-
vember 1986.
Respondent 's Exhibit 18 is a copy of the business auto
policy issued by Liberty Mutual Insurance Company to
Pacific States Industries for liability insurance in the
amount of $1 million per accident or loss to cover the
Employer's trucks and trailers. The policy period was
from 1 November 1986 to 1 January 1987. Vanderhoof
said at the hearing that the policy was extended for a
period from 1 January 1987 to 1 January 1988.
Respondent 's Exhibit 19 is a copy of Pacific States In-
dustries ' umbrella excess liability coverage with Liberty
Mutual Insurance Company in the amount of $5 million.
The policy period is from 1 January 1987 to 1 January
1988. Vanderhoof said that previously there was a simi-
lar policy from 1 November 1986 to 1 January 1987.53
Hoffman did not give the specific date of her inter-
view with Langjahr, but I find that it was on Monday, 3
November 1986, based on their conversation as described
below . The reference to the truck being ready at the end
of the week and the end of the week being 7 November
1986 indicate that her interview with Langjahr occurred
on 3 November 1986.
Hoffman had an interview with Langjahr in the coffee
room at the Employer 's main building in Morgan Hill.
5' The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Burch and Vanderhoof
62 The foregoing findings are based on documentary evidence and on a
stipulation.
63 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vanderhoof and on documentary evidence.
Just Hoffman and Langjahr were present during the
interview.
Langjahr informed Hoffman that he had called most of
the numbers on her application , and that everything was
"A-okay ." Langjahr told Hoffman that she was the first
in line for the job . Hoffman replied that was really good.
Langjahr asked if she had any lumber experience. Hoff-
man replied that she had been in logging at one time,
and that she had driven a log truck . Langjahr responded
that would be a great asset to the Employer to know
how to tie down logs.
Hoffman asked Langjahr about the wages . Langjahr
said that most of his drivers received $7 or $7.10 an
hour, but that Hoffman would be on the night run from
Morgan Hill to Cloverdale , so she would receive $9 an
hour . Langjahr explained to her, because she would be
working only 8 hours a day, the extra $2 an hour would
compensate her for all the hours the other drivers re-
ceived . Hoffman replied that was great . Langjahr com-
mented that Hoffman lived in Santa Nella, and that was
a long way to commute to work . Hoffman replied that, if
Langjahr gave her a job , she was going to relocate to
Morgan Hill or to San Jose . Langjahr said that was
great . At the hearing , Hoffman said that Santa Nella was
located near Los Banos , California. Langjahr informed
Hoffman that a truck was broken down , and that it
would be the end of the week before that truck would
be ready to go.
It was a couple of days later when Langjahr asked
Hoffman for a copy of her DMV record . Langjahr then
went over it with her . At the hearing Hoffman described
her record as being "basically a clean record."
Langjahr spoke with Hoffman "just about every day"
that week either on the telephone or in person . Langjahr
told Hoffman that the truck was still broken and for her
to call him on Friday, 7 November 1986. He also told
her that he was glad to know she was interested in the
job.54
G. The Events on 4 November 1986
On 4 November 1986 Burch was en route from Cali-
fornia to Hawaii . While he was en route to Hawaii,
Burch made the decision to close down the trucking op-
eration at Morgan Hill and to move the Employer's
trucks to Cloverdale.
Burch testified that he knew nothing about the Union's
organizational campaign when Burch made the decision
to move the trucks from Morgan Hill to Cloverdale.
Burch said he first learned of the Union's organizing
campaign on 11 November 1986 from Naughton. 65
H. The Events on 5 November 1986
On 5 November 1986 Burch was in Hawaii . He tele-
phoned Vanderhoof and discussed five to seven ques-
tions Burch had with regard to the employer 's oper-
64 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Hoffman. Langjahr did not testify at the hear-
ing.
ss The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Burch
REDWOOD EMPIRE 379
ations. Then Burch asked Vanderhoof whether Vander-
hoof had been able to get a binder for at least a $10 mil-
lion minimum liability insurance policy . Vanderhoof re-
plied that he had received a binder for $5 million, but it
was conditional on the Employer's switching over its
workmen 's compensation insurance . Burch was furious
about the condition because the Employer previously
had received dividends in six-figure amounts from State
Compensation for the past 2 years . Burch felt that "by
having that gun held at our head , that we would lose
that benefit." Burch told Vanderhoof that he had made a
decision while Burch was en route to Hawaii to shut
down the trucks in Morgan Hill and transfer the trucks
to Cloverdale in order to lower his risk and so that
Burch would have that as an advantage in future deal-
ings with any insurance company . Burch said that within
the next renewal period , he would not have to do busi-
ness with Liberty Mutual , and "in my opinion , it was a
bunch of bullshit that was going on, and I wasn 't happy
about it one damn bit."
Burch then asked to speak with Naughton. Burch
asked Naughton about Burch 's earlier offer to move
Naughton to the position of general manager of the Em-
ployer . Naughton accepted Burch's offer . Burch thanked
Naughton for accepting the position . Burch told
Naughton that he would be responsible for the Employ-
er's sales efforts at Morgan Hill, Cloverdale, and Minne-
apolis, and ultimately Naughton would be responsible for
moving the production from the sawmill in Cloverdale
and the sawmill in Philo if that transaction occurred.
Burch also told Naughton that Burch wanted to shut
down the trucks in Morgan Hill and transfer the trucks
to Cloverdale . Burch said he expected Naughton to take
care of that assignment within 1 week and to accomplish
that in a discreet manner and in keeping with past com-
pany policies . Burch told Naughton not to discuss that
matter with anyone except Vanderhoof.56
Respondent's Exhibit 28 is a copy of a telephone bill
from Hawaiian Telephone. It shows a telephone call was
made at 9:43 a.m . Hawaiian time on 5 November 1986.57
In the opinion of Vanderhoof , Burch is very dominent
in his management style . Vanderhoof was of the opinion
that Burch is aggressive in implementing his decisions,
and oftentimes Burch is abrupt in his decision-making
and in some of his statements . Although they earlier had
discussed the consolidation of the trucks, Vanderhoof
was surprised that the event would be triggered by the
insurance problem.
Prior to 5 November 1986 Burch and Vanderhoof had
discussed insurance coverage for the Employer's trucks.
Vanderhoof said that the zone that Morgan Hill was in
for domiciling vehicles is a higher risk zone than the
Cloverdale zone . Burch and Vanderhoof understood that
the Employer 's insurance costs would be reduced. Van-
derhoof said Burch had a theory that, if the trucks could
be domiciled in one location and monitored on a consoli-
dated basis, the Employer could present a better picture
to the insurance company regarding the Employer's use
and safety record of the trucks.
In the opinion of Vanderhoof, it was not out of char-
acter for Burch to decide to have the Morgan Hill trucks
moved to Cloverdale within 1 week. Vanderhoof gave
two examples of other actions by Burch . Vanderhoof
said that in April 1980 Burch had told Vanderhoof that
Burch was no longer satisfied with the performance of
the Employer 's Elk Grove facility, and Burch was going
to shut down that facility the following Friday. Vander-
hoof said that did happen and that 12 to 14 employees
were terminated without any advance notice . None of
the three or four truckdrivers there were offered trans-
fers to other locations of the Employer 's business. There
was no union organizing drive going on at Elk Grove at
that point in time.
In August 1984 Burch had told Vanderhoof that
Burch was unhappy with the manager and the operating
results at the Employer's remanufacturing facility at Ho-
pland, and that Burch was going there to shut the place
down . Burch did the foregoing within a couple of days,
and he terminated approximately 25 employees there
without any advance notice.
The Employer's Cloverdale facility took over the job
functions previously performed at Hopland, and the em-
ployees who had been engaged in remanufacturing work
were offered jobs at Cloverdale. Vanderhoof explained
that Hopland is about 20 miles north of Cloverdale.
Some of those employees previously had worked for the
Employer at Cloverdale, and they had been transferred
by the Employer to the Hopland facility . Some of them
live in Cloverdale and commuted from Cloverdale to
Hopland . Vanderhoof said at the hearing that there was
no union organizing activity at Hopland at the time.
Vanderhoof also said at the hearing that it was the
Employer's policy to terminate employees immediately
and without notice . Vanderhoof said the reason was that
an employee 's value to the Employer was "severely di-
minished" once an employee became aware that he was
going to be terminated.68
In the opinion of Naughton , Burch's instructions to
him were consistent with Burch 's managerial style, and
not giving advance notice to anyone prevented creating
anxiety on the part of the sales force as to the Employ-
er's ability to keep its delivery commitments to custom-
ers. Naughton said at the hearing that the timing of
Burch 's informing him to move the trucks the next week
took Naughton off guard . However, Naughton did not
question Burch because Naughton believed he could tell,
based on his knowing Burch for 7 years in a management
position , that that was not a time to question Burch. In
the opinion of Naughton , Burch spoke in an angry voice.
Naughton said he did not know what the Employer's in-
surance situation was at that time because that was not
an area of his responsibility.
After speaking with Burch on the telephone,
Naughton asked Vanderhoof if Burch had discussed with
se The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Burch , Vanderhoof, and Naughton. sa The findings in the foregoing paragraphs are based on credited por-
5 7 The foregoing findings are based on documentary evidence. tions of the testimony of Vanderhoof.
380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him the transfer of the trucks to Cloverdale . Vanderhoof
said yes. 59
On 5 November 1986 a drivers' meeting was held at
the Morgan Hill facility . Langjahr, the truckdrivers from
the Morgan Hill facility , and two truckdrivers from Clo-
verdale were present . The meeting was held in Burch's
office . Langjahr told the employees that all of them
knew what had happened to Jim Moore . Langjahr then
talked with the drivers about taking too long here and
there, and cheating the Employer out of work time.
Gulermovich asked Langjahr about the pay, and why
all the other lumber companies were paying $12 to $14
an hour, and the employees were getting $7 an hour.
Langjahr said that was not his department , and they
would have to talk to somebody else. Gulermovich per-
sisted in the matter, and Langjahr replied that "the door
swings both ways," and that if Gulermovich did not like
what he was getting at that time , he could quit. There
was no mention at the drivers ' meeting that the Employ-
er planned to discontinue its trucking operations at
Morgan Hill.so
After the drivers' meeting, Gulermovich telephoned
his cousin , Sandra, and he asked her to try to contact a
person at the Union . Gulermovich did that because he
was on duty at that time , and he had to tie down the
load on his truck . Thereafter, Sandra informed Gulermo-
vich that she had contacted the Union , but meanwhile
Gulermovich also had asked a friend of his to call the
Union . Gulermovich 's friend was at the Employee's fa-
cility at that time in order to apply for a job . Then Gu-
lermovich telephoned the Union , and a secretary told
Gulermovich that a union man was on the way. Guler-
movich told her he would do his best to stay at the Em-
ployer's facility until the union man arrived.
Bob Turner arrived at the Employer's Morgan Hill fa-
cility. Gulermovich's friend asked Turner to stay in Gu-
lermovich 's camper until Gulermovich had some slack
time so he could talk to Turner. Thereafter, Gulermo-
vich spoke to Turner at the camper , and he asked Turner
to come into the drivers room which is also known as
the break room . Turner went to the break room with
Gulermovich . Also present in the break room were
George Anderson and Dawn Hoffman. Langjahr walked
by the open doorway to the break room in the company
of a couple of people who Gulermovich assumed to be
salesmen . Langjahr did not speak to Gulermovich on
that occasion.
Turner told the persons in the break room that they
really could not discuss anything on company time, and,
if they wanted to set up a meeting on their time some-
where else , he would do that . They agreed to meet on
Saturday , 8 November 1986. Thereafter, Gulermovich
contacted the Morgan Hill truckdrivers concerning the
e9 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Naughton.
60 The findings of fact in the foregoing paragraphs are based on cred-
ited portions of the testimony of Gulermovich , Weaver, and Anderson.
However, Anderson was in error in stating that Langlahr distributed the
Employer 's handbook in early November 1986 and that he asked the
truckdrivers to sign an acknowledgment that they had read the hand-
book . Anderson said he later signed such an acknowledgment R Exh. 2
is a copy of that document , and is dated 24 July 1986. Thus, the distribu-
tion of the handbook occurred on or before 24 July 1986.
meeting . He contacted some of the drivers at the Em-
ployer's Morgan Hill facility; some of them by tele-
phone ; and some of them at their homes.at
1. The Events on 6 November 1986
Three memos dated 6 November 1986 were sent out
by Burch to announce a consolidation of G & R Lumber
Company in Cloverdale with Redwood Empire, Inc. of
Morgan Hill, and to announce the appointment of
Naughton to be general manager at both locations under
the name of Redwood Empire, Inc. Respondent 's Exhibit
25 is a copy of the memo sent to the Employer's custom-
ers. Respondent 's Exhibit 26 is a copy of the memo sent
to the Employer's vendors . Respondent 's Exhibit 27 is a
copy of the memo which was placed in the employees'
pay envelopes . Respondent 's Exhibit 27 also announced
the resignation of Marty Olhiser as the manager of G &
R Lumber Company.62
On 6 November 1986 Gulermovich was in the break
room with Bennett, some of the forklift drivers, and
some of the yard employees. The talk was about the
Union and whether those persons would attend the union
meeting . One driver said that he really was against it.
Bennett agreed with Gulermovich that everyone, in-
cluding himself, was underpaid . Bennett said that he was
all for the Union . Bennett said he did not know whether
he could attend the meeting because , as of that day, Ben-
nett was going on a salary instead of being on the time-
clock.63
J. The Events on 7 November 1986
On 7 November 1986 Dawn Hoffman went to the Em-
ployer's Morgan Hill facility and spoke with Langjahr.
Langjahr informed Hoffman that she definitely had the
job because she was so interested and because she had
kept coming back . Hoffman told Langjahr that she had
to return to Santa Nella to work over the weekend. She
explained that she worked part -time as a cocktail wait-
ress . Hoffman told Langjahr that she was going to turn
in her 2 weeks' notice, and that she would be back at the
Employer's facility on Monday. Langjahr told Hoffman
that would be great, and that she should be ready to roll
by Monday.64
K. The Events on 8 November 1986
On 8 November 1986 Ralph Rodriguez -Berriz, the
business agent of the Union, conducted a meeting with
certain employees of the Employer at The Capri Restau-
rant . Bob Turner , a union representative , also was
present. The meeting lasted about 2 hours . There was
discussion about belonging to the Union and how to go
about being represented by the Union. Union authoriza-
tion cards were distributed at the meeting . Rodriguez-
61 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Gulermovich and Anderson
62 The foregoing findings are based on credited portions of the testi-
mony of Naughton and on documentary evidence
63 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Gulermovich.
64 The foregoing findings are based on credited portions of the testi-
mony of Hoffman.
REDWOOD EMPIRE 381
Berriz observed the employees sign the union authoriza-
tion cards at the meeting . All of the employees who
were present signed cards, and then they gave the cards
to Rodriguez-Berriz.
All of the authorization cards are dated 8 November
1986. General Counsel 's Exhibit 5 is the union authoriza-
tion card of Richard Weaver . General Counsel 's Exhibit
6 is the union authorization card of Donald M. Sproat.
General Counsel 's Exhibit 7 is the union authorization
card of Kevin Harp . General Counsel 's Exhibit 8 is the
union authorization card of Steven Bennett . General
Counsel 's Exhibit 9 is the union authorization card of
George Vazquez. General Counsel 's Exhibit 10 is the
union authorization card of George F. Anderson . Gener-
al Counsel 's Exhibit 11 is the union authorization card of
William Gulermovich . General Counsel 's Exhibit 12 is
the union authorization card of James W. Moore.65
During the discussion with the employees at the meet-
ing, Rodriguez-Berriz informed the employees that the
Employer might not have any objections to their attempt
to organize, and that the Employer might be agreeable
to resolving the matter very easily . On the other hand,
Rodriguez -Berriz also informed the employees that the
Employer might take a hard stand and terminate all of
them . Rodriguez-Berriz emphasized to the employees
that it would be against the law for the Employer to ter-
minate them because of their union activities . Several of
the employees expressed their opinion to Rodriguez-
Berriz that the Employer "would be crazy enough to do
that ." Rodriguez-Berriz further told the employees that
they should be sensitive to what they heard such as
statements by the Employer during that period of time.
Rodriguez-Berriz described to them what he considered
to be illegal threats as any threats to close down the fa-
cility; to change their work schedules ; to lay them off
out of the normal sequence; and to intimidate them in
order to make the employees change their mind about
joining the Union.
Bennett attended the meeting and signed a union au-
thorization card , as indicated above . Bennett did not
leave the union meeting early.66
Bennett became acting yard foreman at the Employer's
Morgan Hill facility about August 1986 . Bennett became
yard foreman in late October 1986 . He was moved to a
salary position at that time . Bennett was still employed
by the Employer in the position of yard foreman at the
time of the hearing.
Bennett is responsible for the unloading and the house-
keeping in the yard area at the Morgan Hill facility. Ben-
nett operates a forklift and supervises the persons who
work in the Morgan Hill yard . Bennett does not work in
an office . The yard employees report directly to Bennett.
Bennett has the authority to hire and fire employees.
General Counsel 's Exhibit 4 includes a description of all
the duties that Bennett is to perform.67
65 The parties stipulated that Moore was not an employee of the Em-
ployer on 8 November 1986
as The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Rodriguez-Berriz , Anderson; Gulermovich,
Weaver, and Vazquez.
67 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
General Counsel 's Exhibit 4 is a copy of a three-page
letter submitted by the Respondent 's attorney to Region
32 of NLRB during the investigation of the unfair labor
practice charge which resulted in this proceeding. In
part, the document states:68
In addition , although Redwood Empire will not
be presenting Steven Bennett for the purposes of
providing an affidavit to the Region , the following
is a description of Bennett 's job responsibilities as
yard supervisor at Redwood Empire's Morgan Hill
facility:
1. Hire, fire , discipline and supervise all yard per-
sonnel;
2. Supervise operation and maintenance of the
yard, equipment and warehouse;
3. Maintain proper flow between warehouse and
sales office;
4. Be familiar with Company policies concerning
hiring, benefits , shipping and receiving , sales and
service;
5. Be familiar with grades of material in stock
and oversee proper maintenance and storage of all
stock;
6. Prepare personnel working schedules including
authorization of necessary overtime for yard people;
7. Inspect out-bound loads prior to the load leav-
ing the yard to insure proper, safe and lawful load-
ing and tallying;
8. Oversee receipt of incoming stock including
tallying, tagging and placing stock in the yard. This
includes noting any discrepancies or damage on
shipping copies as compared to actual stock re-
ceived prior to signing for receipt;
9. Coordinate deliveries and pick -ups with driv-
ers, maintaining communication throughout the day
in order to avoid any delays in loading or unload-
ing;
10. Maintain files concerning yard personnel, fuel
consumption, railcars, maintenance records on all
company vehicles (with the exception of tractors
trailers);
11. Oversee scheduling of preventive mainte-
nance and repairs on all company vehicles used in
the yard and warehouse (with the exception of trac-
tor trailers);
12. Purchase yard supplies; and
13. Participate in budget planning.
Based upon all of the foregoing , I find that Bennett
has been a supervisor of the Employer within the mean-
ing of Section 2(11) of the Act from August 1986 to at
least the time of the hearing in this proceeding . It is rec-
ognized that it is not necessary that a person possess all
of the statutory authority set forth in Section 2(11) of the
Act because that section is to be read in the disjunctive.
Ohio Power Co. v. NLRB, 176 F.2d 385 (6th Cir. 1949),
cert. denied 338 U .S. 899 ; Arizona Public Service Co. v.
NLRB, 453 F.2d 228 (9th. Cir. 1971); Big Rivers Electric
Corp., 266 NLRB 380, 382 ( 1983).
68 These findings are based on documentary evidence.
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
L. The Events on 10 November 1986
On 10 November 1986 Langjahr brought a note to
Naughton from one of the yard employees , Dave Ohler.
The note said there was talk or a rumor of union activi-
ty. At the hearing Naughton was not certain what the
note said , and he had not kept the note . As a result of
receiving that note , Naughton spoke to Bennett.
Naughton asked Bennett if he had heard any talk of
union activity . Bennett informed Naughton that Bennett
had received a telephone call at his home on Saturday
morning; that Bennett went to a meeting at The Capri
Restaurant ; and that when they learned Bennett was a
supervisor , they asked him to leave.69
On 10 November 1986 Naughton came into Vander-
hoof's office and told Vanderhoof that somebody from
the yard had told Naughton that there had been a union
organizing effort and a union meeting over the weekend.
Naughton informed Vanderhoof that Dave Ohler was
the yard person who had told Naughton . Naughton
asked Vanderhoof what he thought Naughton should do
given the situation that was going to occur in just 2
days . Vanderhoof told Naughton that there was not
much they could do about it; that the decision had been
made to shut down the trucking operations at Morgan
Hill and to transfer the trucking operations to Clover-
dale.7 °
On 10 November 1986 Weaver had a conversation
with Naughton and Langjahr in Naughton 's office. At
first, just Langjahr and Weaver were present in the
office . Weaver asked Langjahr if this was because of the
Union. Langjahr just shrugged his shoulders.
Naughton then came into the office . In the opinion of
Weaver, Naughton appeared to be excited , and his voice
had "a yell tone ." Naughton told Weaver that they
would not stand "for anything like this here ." Naughton
asked Weaver if there was any truth to the rumor going
around about union activity . Weaver replied that there
was. Naughton asked Weaver if there had been a meet-
ing. Weaver replied that there had been . Naughton then
asked Weaver who was present at that meeting . Weaver
informed Naughton that all but one of the drivers had
been present . Naughton told Weaver that Burch would
shut the place down . Naughton also said that they would
contract out the work to outside carriers and sell the
equipment.
Langjahr told Weaver that they would pay by the
drop, or that they would work the trucks for 8 hours;
stop the trucks where they were ; and layover the driv-
ers, if the Union like this was to come in.
Naughton reiterated that Burch would shut the place
down . Naughton asked Weaver if Gulermovich was in-
volved in this activity . Weaver replied yes. Naughton
asked why a new person had to start trouble there.
Naughton also asked why people who were unhappy
69 The testimony of Naughton about what Bennett had told him was
not received for the truth of the matter asserted by the out -of-court de-
clarant , Bennett Otherwise , the foregoing findings are based on credited
portions of the testimony of Naughton . As indicated in the previous sec-
tion of this decision , I have credited testimony that Bennett did not, in
fact, leave the union meeting early
70 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
there did not quit and leave the people who were happy
to have a job there. Naughton once again told Weaver
that Burch would shut the place down. Naughton asked
Weaver if they had signed anything. Weaver informed
Naughton that all of them had done so.
They then discussed the fact that Weaver was a senior
driver. Naughton told Weaver that they expected
Weaver to come in and to let them know about some-
thing like this ahead of time. Weaver replied that he was
not "a fink." Naughton said that Weaver would not be
"finking," Weaver would be protecting his job.
Naughton also told Weaver to look at Bennett who had
started out sweeping the yard and now was yard fore-
man.
Weaver asked Naughton how Weaver's work was.
Naughton replied that he had no problems with Wea-
ver's work or performance which was acceptable.
Naughton also told Weaver that Louisiana Pacific and
Weyerhauser were going broke because of union activi-
ties.7 t
Anderson had a conversation with Bennett about the
union meeting. The conversation took place in front of
the break room about 4 or 5 p.m. No one else was
present. Anderson had just returned from a run and was
washing his truck and getting it ready for the next day.
Bennett approached Anderson and informed him that
Naughton and Langjahr had found out about the union
meeting; that Naughton and Langjahr had Bennett in
there that morning; that Weaver had been in there; and
that Anderson probably would be next. Anderson asked
Bennett what was it about. Bennett told Anderson that
Naughton and Langjahr wanted to know who was at the
meeting; who had signed cards; and what had been said
at the meeting.72
On 10 November 1986 Hoffman went to the Employ-
er's Morgan Hill facility to see Langjahr. Langjahr was
in a meeting that morning, so Hoffman left and returned
that afternoon. When she spoke with Langjahr that after-
noon, Langjahr told her that the truck was still broken,
and that they did not know what was wrong with it, but
as soon as they had a truck available, she would be
going to work.73
On 10 November 1986 Gulermovich injured himself at
work while he was lifting up one of the traps. Gulermo-
vich left the Employer's facility in order to go to the
hospital.74
71 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Weaver and on certain admissions made by
Naughton in his version of the conversation. Counsel for the General
Counsel requested in her brief that I draw an adverse inference from the
fact that Langjahr was not called to testify regarding the conversation. I
grant that request Martin Luther King, Sr., Nursing Center, 231 NLRB 15
(1977).
72 The foregoing findings are based on credited portions of the testi-
mony of Anderson
79 The foregoing findings are based on credited portions of the testi-
mony of Hoffman.
74 The foregoing findings are based on credited portions of the testi-
mony of Gulermovich.
REDWOOD EMPIRE 383
M. The Events on 11 November 1986
On 11 November 1986 Burch had a conversation with
Naughton . Naughton informed Burch that he was aware
of the union organizing effort at Morgan Hill, and
Naughton asked how that affected Burch 's decision.
Burch told Naughton that Burch 's decision had been
made , and that Burch had heard union talk in many com-
panies over many periods of time, and that it did not
affect how Burch ran his day-to-day business.75
On 11 November 1986 Burch told Vanderhoof that
Naughton had mentioned to Burch in Cloverdale that
day that there was a union campaign . Burch asked Van-
derhoof if Vanderhoof knew anything more about it.
Vanderhoof replied that he did not. Burch told Vander-
hoof that Burch would discuss it when Burch returned
to Morgan Hill later that week.76
On 11 November 1986 Naughton had a telephone con-
versation with Langjahr in which Naughton informed
Langjahr that a memo was being typed ; that all of the
trucks in Morgan Hill would be shut down ; that the
trucks would be transferred to Cloverdale ; and that the
reason given by Burch was that the Employer was not
able to find suitable insurance . Langjahr expressed his
shock and asked what he should do . Naughton gave
Langjahr some suggestions on how to accomplish his
job. Naughton told Langjahr that Naughton did not
want any interruption in service to the Employer's cus-
tomers . Naughton also gave Langjahr suggestions with
regard to subhaulers to contact . Naughton said he per-
sonally would contact Lyle Stanley of ViDoDi Trucking
and ask for Stanley 's support and for Stanley to contact
Langjahr.77
N. The Events on 12 November 1986
On 12 November 1986 Hoffman telephoned Langjahr
at the Employer 's Morgan Hill facility . Langjahr told
Hoffman that the truck was not ready , and that there
were no loads available . Langjahr told Hoffman to come
in on Friday , and he would see about putting her to
work.7 8
On 12 November 1986 the consolidation of the Em-
ployer's trucking operations took place, and the Morgan
Hill truckdrivers were terminated . A copy of General
Counsel's Exhibit 3 was given at the end of the workday
to Morgan Hill truckdrivers who had worked that day.
The text of General Counsel 's Exhibit 3 states:
It is with regret that I announce the termination
of the truck operators at Morgan Hill.
I have arrived at this decision due to the unavail-
ability of suitable insurance on the long haul trucks
based in Morgan Hill.
On behalf of Redwood Empire, I want to thank
you for your past efforts . May I suggest that you
contact the California Trucking Association at (415)
783-3870; Georgia Pacific or Weyerhauser for
future employment.
Although the memo is dated 11 November 1986, it
was not given to the Morgan Hill truckdrivers until 12
November 1986. Naughton is the one who prepared the
memo, and the memo is from him to the truckdrivers. At
the hearing, Naughton acknowledged that the memo was
inaccurate in stating that it was Naughton's decision be-
cause , in reality , Burch had made the decision. Vander-
hoof said at the hearing that it was not unusual for a
memo to employees to indicate that the Employer's man-
ager had made a decision when, in fact , the decision had
been made by Burch . Vanderhoof explained that it was
Burch 's philosophy that the manager who is to imple-
ment the decision is the one who prepares a memo and
takes the appropriate action.
In the opinion of Naughton , none of the Morgan Hill
truckdrivers lived within any reasonable proximity to
Cloverdale. Naughton said that , if the Morgan Hill driv-
ers had lived closer to Cloverdale , they would have been
allowed to transfer to Cloverdale , and they would not
have been fired.79 .
The Employer 's truck liability insurance as of 12 No-
vember 1986 exceeded the limits that it had been for
truck liability insurance during the calendar year prior to
12 November 1986.80
Langjahr called Anderson into the break room about 4
or 5 p . m. on 12 November 1986 . Langjahr handed An-
derson a copy of General Counsel 's Exhibit 3. Anderson
read the document , and he laughed . Anderson told
Langjahr that Langjahr knew what this was about as
well as Anderson did with regard to why they were
being fired . Langjahr told Anderson that Anderson
could think what he wanted , but they could not run the
trucks without insurance . Anderson laughed again and
walked away . Anderson lived in San Martin , which he
said was about 5 miles south of Morgan Hill.8 t
On 12 November 1986 about 5:30 p .m., Langjahr
spoke with Weaver near the fuel pump as Weaver was
preparing to fuel a truck . Langjahr told Weaver to stop,
and Langjahr handed Weaver a letter that he wanted
Weaver to read . General Counsel 's Exhibit 3 was identi-
fied as being a copy of that document . Weaver read the
document , and then Weaver asked Langjahr if it was be-
cause of the Union . Langjahr replied no. Weaver then
told Langjahr that "it was a bunch of bullshit ." Langjahr
just shrugged his shoulders.
After Weaver was terminated , he had still another
conversation that day with Langjahr . Langjahr told
Weaver that he would give him "a resume" and Wea-
ver's expense money . Weaver lived in Gilroy which he
said was about 10 miles or less from Morgan Hill.82
75 The foregoing findings are based on credited portions of the testi-
mony of Burch.
78 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof
77 The foregoing findings are based on credited portions of the testi-
mony of Naughton.
78 The foregoing findings are based on credited portions of the testi-
mony of Hoffman.
78 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Naughton and Vanderhoof and on documentary
evidence.
80 The foregoing is based on a stipulation by the parties.
81 The foregoing findings are based on credited portions of the testi-
mony of Anderson.
88 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Weaver
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 12 November 1986 when Vazquez drove up in the
Morgan Hill yard , George Anderson asked Vazquez not
to do anything with the truck , but instead to see Lang-
jahr who wanted to talk with Vazquez.
Vazquez then went to Langjahr 's office and waited for
him. Langjahr called Vazquez into the coffee room. Just
Vaqzuez and Langjahr were present during their conver-
sation . This occurred about 6 : 30 or 7 p.m. Langjahr
handed a copy of General Counsel's Exhibit 3 to Vaz-
quez . Vazquez read the document and then he asked
Langjahr what it was about . Langjahr replied insurance
availability for long hauls . Langjahr told Vazquez to
clean out his truck and then come back and Langjahr
would give Vazquez his check.
Vazquez next cleaned out his truck . Then Vazquez re-
turned to the coffee room . Langjahr asked Vazquez who
was at the meeting at The Capri . Vazquez informed
Langjahr who had been at the union meeting . Langjahr
indicated that he knew Bennett had been there . Langjahr
asked Vazquez who else had been at the meeting. Vaz-
quez replied that he did not recall the names , but Vaz-
quez said that most of the guys had been there.
Langjahr asked Vazquez if Vazquez had signed a card.
Vazquez replied that he had not done so, and that Mike
Sproat, who was living at Vazquez' house, also had not
signed a card . Langjahr told Vazquez that Langjahr
would talk with Naughton about Vazquez and Sproat
"to help preserve our jobs."
At the hearing Vazquez acknowledged that both he
and Sproat had signed union cards . Nevertheless, Vaz-
quez had told Langjahr that they had not done so. At
the time of his termination by the Employer, Vazquez
was living in Morgan Hill. Vazquez owns a house there,
and he had lived in Morgan Hill for 17 years.83
0. The Events on 14 November 1986
On 14 November 1986 Gulermovich returned to the
Employer 's Morgan Hill facility for the first time since
he had injured himself at work on 10 November 1986.
Gulermovich spoke with Langjahr in the coffee break
room in the main office building. Just Langjahr and Gu-
lermovich were present during their conversation.
Gulermovich told Langjahr that he had come in to get
his check . Langjahr asked Gulermovich to give him the
keys to the truck. Gulermovich asked Langjahr what he
wanted the keys for . Langjahr then gave Gulermovich a
copy of General Counsel's Exhibit 3. Gulermovich read
the document . Gulermovich then stood up and gave the
document back to Langjahr . Gulermovich told Langjahr
that Langjahr could not do that to Gulermovich, and
that Gulermovich was on disability . Gulermovich asked
Langjahr how Langjahr was going to fire Gulermovich
while Gulermovich was on disability . Gulermovich said
he had gotten hurt on the job . Langjahr said he did not
care.
83 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Vazquez Counsel for the General Counsel re-
quested in her brief that an adverse inference be drawn because Langjahr
was not called to testify regarding the foregoing conversations. I grant
that request. Martin Luther King Sr.. Nursing Center, supra.
Gulermovich told Langjahr to give him his check.
Langjahr told Gulermovich to give him Gulermovich's
keys . The keys were in Gulermovich 's pickup truck, so
Gulermovich left the room in order to get the keys.
Gulermovich passed by Bennett and asked Bennett
what was going on. Bennett replied that all of the driv-
ers were fired on Wednesday . Gulermovich replied okay,
and that he assumed that was what was going on and
why some of the trucks were there.
Gulermovich returned to the coffeebreak room where
he again talked with Langjahr. They discussed the
amount of his paycheck which Gulermovich believed
was not correct . They resolved that dispute . Langjahr
gave Gulermovich his check , and Gulermovich then
gave Langjahr the keys . Gulermovich told Langjahr that
he was going to leave , but Gulermovich also said that
they both knew what this was about , and that this was
about the Union . Langjahr replied "well," and Langjahr
shrugged his shoulders . Gulermovich then told Langjahr
that Gulermovich knew this was a lie, and that any
trucking company would be glad to hire Gulermovich
because Gulermovich had been driving for 20 years. Gu-
lermovich told Langjahr that he had a perfect driving
record, and that the insurance thing was "bull ." Guler-
movich also called Langjahr a liar. Gulermovich asked
Langjahr why the Cloverdale drivers were still driving if
there was an insurance problem . Gulermovich asked
why they were driving when Gulermovich was "a per-
fect driver." Langjahr replied that the Cloverdale drivers
were under a different insurance contract.84
On 14 November 1986 Hoffmann went with Gulermo-
vich to the Employer 's Morgan Hill facility. Gulermo-
vich showed Hoffmann the letter he had received from
Langjahr . Hoffmann told Gulermovich that she did not
believe it because she was ready to go to work for the
Employer.
Hoffmann then went into the Employer's office where
she spoke with Langjahr . Langjahr told Hoffmann that
she should not even bother calling back because they
had no insurance on the trucks . Hoffmann asked Lang-
jahr what he was going to do with the trucks . Langjahr
replied that they were going to move all of the trucks to
Cloverdale . Hoffmann told Langjahr that she could relo-
cate to Cloverdale just as easy as she had relocated to
Morgan Hill . Hoffmann asked why should she not go up
to Cloverdale and get a job . Langjahr replied no, and he
said that they had drivers already available for the
trucks. Langjahr told Hoffmann that there was just no
sense ever in her coming back . At the hearing Hoffmann
said that Santa Nella probably was in excess of 150 miles
from Cloverdale.85
At the time Vazquez was terminated by the Employer
on 12 November 1986, Vazquez was assigned to drive
truck No. 4. On 14 November 1986, Vazquez and Mike
Sproat went by the Employer's Morgan Hill facility.
They saw a truck pull out of the Employer's yard. Vaz-
quez observed that it was the truck he formerly had
84 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Gulermovich.
85 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Hoffmann
REDWOOD EMPIRE 385
driven. Therefore, he and Sproat followed the truck
down Highway 101 as far as Madison Avenue in Gilroy.
Vazquez did not recognize the person who was driving
the Employer's truck that day. Vazquez said the truck
was loaded with lumber . Vazquez recognized that the
tags on the truck indicated the truck was going to Mo-
desto , California . At the hearing Vazquez said he had
made the truck run to Modesto three times during the
time of his employment with the Employer . On direct
examination, Vazquez asserted that the Modesto run was
commonly made . However, he acknowledged on cross-
examination that he did not keep track of the runs made
by other Morgan Hill drivers; the Cloverdale drivers or
the subhaulers.86
Within 1 or 2 days after he was fired, Anderson saw
on the highway truck No. 4 from the Employer's
Morgan Hill facility.87
P. Other Events and Subsequent Events
Respondent 's Exhibit 17 is a copy of a representation
petition filed on 13 November 1986 with Region 32 of
the NLRB by the Charging Party Union which was
seeking to represent a unit of all full-time and regular
part-time drivers, warehousemen, yardmen , and forklift
operators at the Employer's Morgan Hill facility. Van-
derhoof said he first saw the petition on 17 November
1986.88
Weaver was assigned to drive truck No. 10 while he
worked for the Employer. Shortly after Weaver was ter-
minated , Weaver observed a Cloverdale driver named
John driving truck No. 10.89
Sometime subsequent to his termination by the Em-
ployer, Weaver telephoned Bennett and asked why
ViDoDi Trucking was in the Employer's Morgan Hill
yard so much when they had not been there that much
earlier . Bennett informed Weaver that ViDoDi Trucking
was doing the hauls that the truckdrivers used to do, and
athat they staying at a Morgan Hill motel which Burch
was paying for. Bennett also told Weaver that he
thought Burch owned a one-half interest in ViDoDi.90
ViDoDi Trucking has been a subhauler for the Em-
ployer for about 5 years . Burch does not have any own-
ership interest in that company.9 t
89 The foregoing findings are based on credited portions of the test)-
mony of Vazquez . Sproat did not testify at the hearing
87 The foregoing findings are based on credited portions of the testi-
mony of Anderson
88 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence.
89 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence.
90 The foregoing findings are based on credited portions of the testi-
mony of Weaver As indicated , I have credited Weaver 's account as to
what Weaver was told by Bennett with regard to Burch 's one-half own-
ership of ViDoDi Trucking However, Bennett was in error . As will be
shown in the next paragraph in the text , Burch , in fact , did not have any
ownership interest in ViDoDi Trucking I find that Vanderhoof was in a
position which enabled him to be more knowledgeable than Bennett of
Burch 's financial business
91 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof
Hoffmann gave two different accounts of two tele-
phone conversations that she had with Langjahr in De-
cember 1986 and in January 1987. The first version is re-
lated at transcript page 282, and the second versions are
at transcript pages 287-288. Those latter versions on
cross-examination are not the same as the version she
had given a few minutes earlier on direct examination.
Yet those two sets of differing versions are different
from the version which she had given in her prehearing
affidavit to an NLRB agent just a couple of weeks
before she testified at the hearing. See transcript pages
289-290 . I am not persuaded as to the accuracy and reli-
ability of her recollections of any of the versions of those
two conversations in December 1986 and January 1987.
Accordingly , I have not credited her accounts in this re-
spect.
In terms of the Employer 's insurance coverage with
Liberty Mutual, the employer does not have any addi-
tional coverage than it had on 3 November 1986. Van-
derhoof had not obtained a $10 million umbrella insur-
ance policy by the time of the hearing.92
After becoming general manager of the employer in
November 1986 , Naughton has spent approximately 60
percent of his working time in Morgan Hill and 40 per-
cent of his working time in Cloverdale . Naughton has
maintained his office at the Employer' s Morgan Hill fa-
cility.
As general manager, Naughton has the chief responsi-
bility for the operational efficiency of all of the Employ-
er's operations , which includes the trucking operation.
He said he was familiar with how the Employer utilized
its trucks both before and after the transfer of the trucks
to Cloverdale in November 1986. After consolidation of
the trucking operations , the sales territory formerly
served by the Employer 's Morgan Hill facility and the
sales territory formerly served by the Employer's Clo-
verdale facility were combined.93
Naughton prepared both Respondent's Exhibits 20(a)
and 20(b). Those two exhibits illustrate typical situations,
but there are exceptions to the ordinary operation of the
trucks as shown in certain instances in General Counsel's
Exhibit 34. Nevertheless , Respondent 's Exhibits 20(a)
and 20(b) are helpful as illustrations to understand the or-
dinary course of the Employer 's trucking operations.
Respondent's Exhibit 20(a) is a diagram which illus-
trates the Employer's typical truck operations prior to
the relocation of the trucks at Morgan Hill to the Clo-
verdale facility. At that time the Employer had 10
trucks . Seven trucks were located at Morgan Hill. Three
trucks were located at Cloverdale.
On a typical business day, the Employer 's three trucks
and trailer at Cloverdale left that facility between 2 and
3 a.m. with a load going south either for a customer's
yard or directly to the Employer' s Morgan Hill facility.
The trucks arrived at a customer 's yard or at the Morgan
Hill facility between 7 and 8 a .m. When the trucks
reached the Morgan Hill facility, the trucks dropped off
92 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
93 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Naughton.
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their trailers and hooked up to fully loaded trailers. The
trucks then left the Morgan Hill facility between 8 and 9
a.m. and headed north . The trucks "backhauled" and
made deliveries to Bay Area customers . The trucks then
continued north towards Cloverdale ; typically picked up
lumber at local mills ; and took that lumber to the Clo-
verdale facility . In the opinion of Naughton , the three
Cloverdale trucks operated most efficiently because of
the reduction in "deadhead time," that is when the
trucks were not carrying any material.
On a typical business day, the Employer 's seven trucks
located at Morgan Hill left that facility in the morning;
headed north , south , east, or west ; made one delivery to
a customer to as many as six deliveries to customers; and
then returned with an empty trailer to the Morgan Hill
facility. Naughton said there were some instances when
the Morgan Hill trucks were able to backhaul products,
but in most instances the trucks would deadhead on the
return trips to Morgan Hill. In some instances , the Em-
ployer had to send Morgan Hill drivers with empty trail-
ers to the mills near Cloverdale in order to pick up
loads . The Morgan Hill trucks usually were parked at
night at the Morgan Hill facility unless a driver was on a
layover at another location . When the Employer em-
ployed a night driver at Morgan Hill , one of the trucks
was used by him.
Respondent 's Exhibit 20(b) is a diagram which illus-
trates the Employer's typical trucking operations after
the Employer relocated the seven Morgan Hill-based
trucks to its Cloverdale facility and consolidated its
trucking operations.
In a typical situation the Employer 's 10 trucks based at
Cloverdale headed south towards the Employer's
Morgan Hill facility . The trucks either carried loads di-
rectly to the Morgan Hill facility or the trucks carried
loads to a customer and then continued the trip to
Morgan Hill . Typically, the trucks obtained new loads at
the Morgan Hill facility , and then they headed north car-
rying loads to customers or to Cloverdale . In some in-
stances trucks carried loads to the Morgan Hill facility
and obtained another load there and then continued
heading south to deliver loads to customers . In those in-
stances the drivers laid over in the customer 's vicinity.
The next day the drivers headed north towards Morgan
Hill where they obtained new loads and backhauled
those loads to customers in the Bay Area and on to Clo-
verdale . With regard to delivery to customers at loca-
tions even further south of Morgan Hill, the Employer
utilizes PUC haulers and leased trucks . The Employer
has utilized subhaulers both before and after the transfer
of the Morgan Hill-based trucks to Cloverdale . Howev-
er, after the consolidation of trucking operations at Clo-
verdale, the Employer has increased its use of sub-
haulers.
Because the lumber mills are located near Cloverdale,
the drivers go to the mills to pick up loads and then
return to the Cloverdale facility with less "deadhead"
time than was required before November 1986.
In the opinion of Naughton, the traffic patterns result-
ing from the trucks being at the Cloverdale facility are
better than when the trucks were at the Morgan Hill fa-
cility . When the Morgan Hill-based trucks made deliv-
eries north of Morgan Hill in the morning , the trucks
were then in the heavy afternoon southbound traffic
when the trucks returned to Morgan Hill. Naughton said
just the reverse situation existed with the trucks based in
Cloverdale. Most of the customers the Employer deliv-
ers to are located north of Morgan Hill.
The Employer has one night driver at the Cloverdale
location . The Employer plans to hire another night
driver to service the Morgan Hill facility . The Employer
also plans to convert the trailers to be used as logging
trucks in order to carry logs between the Philo sawmill
and Cloverdale. In addition , those trucks and trailers are
planned to be used at night to carry finished goods from
the Philo mill either to Cloverdale or to Morgan Hill.
The Employer plans to use the trucks and trailers for
one purpose during the day and for another purpose at
night . The nighttime truckdriver leaves Cloverdale with
a load and takes it to the Employer's Morgan Hill facili-
ty. Sometimes the driver picks up a load at the Morgan
Hill facility and delivers to customers on the way back
north to Cloverdale, but most of the time the driver
"deadheads back to Cloverdale."
Based on his analysis and comparison of drivers' logs
during the period from 1 October to 12 November 1986
with logs during the period from 16 March to 30 April
1987, Naughton said the number of empty runs or dead-
head runs had been reduced from 185 before consolida-
tion to 44 after consolidation. Even as to the latter
figure, it contains some empty runs which were shorter
than those before consolidation . Naughton estimated at
the hearing that the employer would reduce its empty
truck time or deadhead time by 151,000 miles a year.
Based on the Employer's estimate of $1-a-mile cost to
operate its trucks, Naughton believed the cost reduction
would be $ 151,000, and better service would result for
the Employer's customers because the Employer would
have its existing equipment more available on a daily
basis to service its customers . In the opinion of
Naughton , the Employer's customers would be inclined
to pay more for reliable service and not quibble over
price.94
Respondent 's Exhibit 11 consists of a map of a portion
of Northern California and a list of names and locations
of the mill suppliers for the Employer's Cloverdale facili-
ty. Lines have been drawn on the map to show the rela-
tionship of the location of those mill suppliers to the lo-
cation of the Employer's Cloverdale facility. At the
hearing Vanderhoof pointed out that the Employer's
Cloverdale facility was located much closer to those mill
suppliers than was the Employer's Morgan Hill facility,
and that there would be greater transportation costs if
the materials were shipped to Morgan Hill even if
Morgan Hill had a sawmill operation.95
In the opinion of Naughton , the physical location of
the Employer' s dispatcher is not critical to the efficient
operation of the Employer's trucks . The only differences
since the consolidation of the trucking operation is that
94 The findings in the foregoing paragraphs are based on credited por-
tions of the testimony of Naughton and on documentary evidence.
95 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence.
REDWOOD EMPIRE 387
the dispatcher, Langjahr , communicates with Doug
Dienes, the inventory coordinator at Cloverdale, to ar-
range for the loading of the trucks during the day.96
Vanderhoof explained at the hearing that the Employ-
er's computer was located at Morgan Hill, and that the
processing of orders took place there . In Vanderhoof's
opinion , the location of the computer rather than the lo-
cation of the trucks was a key to Langjahr's location.
Vanderhoof pointed out that Langjahr did the dispatch-
ing by telephone , and that the truckdrivers contacted
Langjahr by telephone. 9 7
During the period from 26 January through 9 April
1987 John Gobeille, a truckdriver at the Employer's Clo-
verdale facility, had layover expenses totaling $225 as
compared to the period from 15 April to 21 November
1986 when Gobeille had $25 in layover expenses.98
At the time Santos testified at the hearing, he was em-
ployed by Hicks Lumber in Salinas . Santos placed orders
for Hicks Lumber to purchase supplies from the Em-
ployer. The frequency of such orders varies from once
or twice a week to once every 2 weeks . The supplies are
delivered to Hicks Lumber by the Employer's drivers
from either Morgan Hill or Cloverdale and by a sub-
hauler, ViDoDi Trucking. The Employer's trucks which
delivered to Hicks Lumber had the Employer's logo of
redwood trees and the name Redwood Empire, Inc.
Santos recognized three of the Employer's drivers as
being drivers who he formerly had seen while he was
employed by the Employer . Santos identified them as
Chuck, John , and Ted.99
Naughton said he had interviewed probably 20 to 25
applicants for employment at Cloverdale. Sometimes
Naughton made some written notations of his interview
with an applicant, but at other times he did not do so.
Naughton denied that he routinely made a note about the
union affiliation of an applicant. Naughton said he did do
that when an employee brought up the subject.
Naughton testified that he never made a decision not to
hire anyone based on his union affiliation . Naughton
denied that he checked on the union affiliation of em-
ployees he had hired . He said he only knew that the em-
ployees he had hired previously had worked for union
companies if the employees had told him so, or if
Naughton knew that a particular prior employer was a
union company . Naughton said he was involved in hiring
drivers at the Employer 's Morgan Hill facility for a
number of years . Naughton denied that he had hired
someone at Morgan Hill because of his past union affili-
ation.100
General Counsel's Exhibit 17 is a copy of the applica-
tion papers of William Lieb. His employment application
is dated 25 February 1987. One page of the application
papers reflects Naughton 's handwritten notes of his inter-
96 The foregoing findings are based on credited portions of the testi-
mony of Naughton.
97 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
98 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
99 The foregoing findings are based on credited portions of the testi-
mony of Santos
100 The foregoing findings are based on credited portions of the testi-
mony of Naughton.
view with Lieb on 26 February 1987. Among the nota-
tions are the words "Does not like Union ." Lieb was
hired by the Employer on 9 March 1987.
General Counsel 's Exhibit 25 contains a page in
Naughton 's handwriting of his interview of Dan Ham-
mond on 23 December 1986. Among other things,
Naughton wrote "No Union affiliations-doesn't care."
Naughton denied at the hearing that he asked about
Hammond 's union affiliation. Hammond was not hired
by the Employer.
Also a part of General Counsel's Exhibit 25 is the ap-
plication of employment of Jess Henry McCall. It is
dated 7 January 1987. There was no interview memo at-
tached to his application papers.
General Counsel 's Exhibit 26 contains the application
papers of Kathy Elaine Harshman. The application is
dated 8 December 1986. Among other things , Naught-
on's handwritten notes of the interview with her state:
"Union affiliation-Teamsters/Santa Rosa, 2 mos. B
list-looking for work ." Naughton said that Harshman
told him the foregoing , and that if she got a union job,
she would probably leave the Employer. Naughton said
Harshman was not hired because she lived in Kelseyville,
California, which he said was over an hour's drive from
the Employer's Cloverdale facility.
General Counsel 's Exhibit 27 contains the application
papers of Steven Gantt . The application is dated 17 Sep-
tember 1986 . Among other things , Naughton wrote with
regard to his interview of Gantt : "no union affiliation-
doesn't like ." Naughton denied that he had asked Gantt
about his union affiliation . Gantt was not hired by the
Employer. IL 01
In April 1987 Jerry Caswell, who last worked for the
Employer in March 1986 as a truckdriver, telephoned
dispatcher Langjahr with regard to a ticket which Cas-
well had received in July 1985 while Caswell was work-
ing for the Employer. The ticket had been issued because
the truck Caswell had been driving was overweight. Ac-
cording to Caswell, the truck being overweight was the
Employer's responsibility . Because the ticket had been
placed on Caswell's Department of Motor Vehicles driv-
ing record , Caswell asked Langjahr to have the citation
removed so that Caswell could get his drivers license re-
newed and get other employment. Langjahr told Caswell
to come to the Employer's office the next day and get a
paper which said that the Employer was responsible for
the overweight ticket, and that Caswell was not respon-
sible for it.
The next day Caswell went to the Employer's main
office at Morgan Hill. Caswell spoke with Langjahr in
the lobby . Caswell told Langjahr that he needed a letter.
Langjahr went inside the office and spoke to a secretary.
Then Langjahr told Caswell that it would be just a
minute while the letter was typed.
Langjahr later returned and asked Caswell if he was
working . Caswell replied no. Caswell explained that was
why he needed the letter. Langjahr told Caswell that he
101 The findings in the foregoing paragraphs are based on documenta-
ry evidence , stipulations , and credited portions of the testimony of
Naughton Lieb, Hammond, Harshman , and Gantt did not testify at the
hearing
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
should go to Cloverdale because they were looking for
two drivers . Caswell replied okay , and that he might as
well do so . Langjahr indicated that he would inform
Doug at Cloverdale that Caswell was going there. Cas-
well said okay and fine. 10 2
At the hearing Naughton stated that Caswell had been
terminated by the Employer because of his infractions
against the Employer's policy. Naughton said that he
had not offered Caswell employment at the Cloverdale
facility, nor has Caswell contacted Naughton about being
given a job at Cloverdale. Naughton said Langjahr did
not recommend Caswell to Naughton for a job at Clo-
verdale.103
After the consolidation of the trucks at Cloverdale, the
Employer has acquired machinery to work on equipment
and has developed a maintenance shop at Cloverdale.
Three mechanics work there . Nolan Schweikel has the
responsibility for the Employer 's maintenance shop. In
the opinion of Naughton , the major work performed on
the Employer's equipment at the Cloverdale facility has
saved the Employer thousands of dollars.
The Employer has invested approximately $20,000 in
inventory for tires and wheels . Instead of purchasing
tires from tire shops, the Employer buys in vanload
quantities directly from tire manufacturers . Unlike the
Morgan Hill facility; the Cloverdale facility has a place
to store the tires; to provide for security for them; and to
supervise their use. The Employer rotates and changes
the tires at Cloverdale rather than having that done by a
tire shop , which previously had been done in some cases
at Morgan Hill.
The Employer's average hourly labor cost for mechan-
ics at the Cloverdale facility is $12 . 50. The average
hourly labor cost charged to the Employer for repair
work done by outside companies in the North Coast area
is approximately $34. The average hourly cost charged
to the Employer for repair work done by outside compa-
nies in the Bay Area and the Santa Clara County area is
$50. Since the transfer of the trucks from Morgan Hill to
Cloverdale, the Employer has made more use of its in-
house maintenance capability.
Respondent 's Exhibit 23 is a copy of an estimate dated
7 April 1987 for trailer repair by Redwood Reliance
Sales Company in Cotati, California. The amount of the
estimate was $4,903.80 . The Employer did not get the
trailer fixed there . Instead , the trailer was repaired at the
Cloverdale facility, and additional work was done on the
trailer for $1200 to $1500 cost to the Employer. Prior to
the expansion of the maintenance facility at Cloverdale,
such repair work could not have been done by the Em-
ployer. Previously, minor work, oil changes , lubrication,
and some brake work had been done by the Employ-
er.104
General Counsel's Exhibits 23(a) through (j) are recaps
of invoices related to truck repairs by outside vendors
and supplies purchased by the Employer for particular
102 The findings in the foregoing paragraphs are based on credited
portions of the testimony of Caswell
103 The foregoing findings are based on credited portions of the testi-
mony of Naughton.
104 The findings in the foregoing paragraphs are based on credited
portions of the testimony of Naughton and on documentary evidence.
trucks during the period from 11 September 1986
through 23 March 1987. It does not reflect work per-
formed by the Employer's employees at the maintenance
facility in Cloverdale . One of the reasons for the Em-
ployer's consolidation of its operations was that the Em-
ployer wanted to create a centralized maintenance facili-
ty for truck maintenance and repair at Cloverdale. Van-
derhoof acknowledged at the hearing that the centralized
maintenance facility of more than 400,000 square feet
would not be completed until sometime during the early
summer of 1987.105
At the time of the hearing, the Employer' s inventories
at both Morgan Hill and Cloverdale were smaller than
those inventories had been in November 1986; there was
more uniformity in the inventories at the two locations;
there was less duplication in the inventories than there
had been prior to November 1986; and the Employer
maintained a more consistent amount of inventory year
round than it had in the past. According to Vanderhoof,
the consolidation of inventories at Morgan Hill and Clo-
verdale resulted in a savings to the employer between
$750,000 and $ 1 million from the end of fiscal year 1986
to the time of the hearing.106
Respondent's Exhibit 10 is a color photograph taken of
the Employer's Morgan Hill facility. The photograph
was taken prior to the hearing in May 1987. Vanderhoof
said the Morgan Hill facility encompassed approximately
10 acres . The facility includes a lumber storage building;
a yard office building; two record storage buildings; the
Employer's main office building; and a lumber storage
area.
Since 1984 the Employer has spent about $25,000 for
labor to construct the records storage building adjacent
to the railroad . Since 1984 the Employer also has spent
about $100,000 to place asphalt over a dirt area to allow
for additional lumber storage space at Morgan Hill. The
Employer also has spent approximately $5000 to improve
its septic tank system at the Morgan Hill facility. Van-
derhoof said the Employer planned to spend about
$75,000 at the Morgan Hill facility to construct a lumber
storage shed . Vanderhoof said the Morgan Hill facility is
located on land which is zoned for agriculture , but the
Employer had a use permit for its operations there.1107
Weaver said there was more lumber at the Morgan
Hill facility on the day he testified on 15 May 1987 than
there was depicted in Respondent 's Exhibit 10.108
Respondent 's Exhibit 9 is a copy of the site plan dated
1 January 1987 for most of the Employer's Cloverdale
facility. Not shown on the diagram is an adjoining addi-
tional 5 acres of grape vineyards . The Employer has
plans to expand into the grape vineyards within next 3
years by putting a material storage area and lumber stor-
age area there . The existing size of the Cloverdale facili-
ty is approximately 25 to 30 acres. At the time of the
105 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof and on documentary evidence.
106 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
107 The findings in the foregoing paragraphs are based on credited
portions of the testimony of Vanderhoof and on documentary evidence.
108 The foregoing are based on credited portions of the testimony of
Weaver
REDWOOD EMPIRE
hearing the Employer was in the process of constructing
a new metal structure over the wooden building known
as mill No. 3 at its Cloverdale facility. The costs of that
project were estimated to be between $50 ,000 and
$100,000.
The Employer's Philo facility is located about 35 to 40
miles west of the Employer's Cloverdale facility. The
Philo facility covers about 20 acres . The Philo sawmill
was acquired by the Employer on 1 April 1987. Negotia-
tions to purchase that sawmill had begun during the
early summer of 1986. The Employer spent approximate-
ly $2.5 million to acquire the Philo sawmill . The Em-
ployer plans to spend in excess of $500,000 to expand the
cutting capability at the Philo sawmill.
The number of employees of the Employer at Clover-
dale has increased from approximately 40 employees in
1984 to approximately 110 employees at Cloverdale and
Philo at the time of the hearing. The number of employ-
ees of the Employer at Morgan Hill has increased from
approximately 25 or 30 employees in 1984 to approxi-
mately 35 employees at the time of the hearing.
Vanderhoof said that the Employer had spent in
excess of $7 million from 1984 through 31 March 1987
for expansion and improvements at its Cloverdale facility
and to acquire the Philo facility. During that same
period of time the Employer invested between $ 150,000
and $200,000 at its Morgan Hill facility. The Employer
plans to spend between $500,000 and $ 1 million over the
next 3 years for further expansion and improvement of
its Cloverdale facility.' 0 9
Vanderhoof acknowledged at the hearing that until 31
March 1987, which was the close of the Employer's 1987
fiscal year, certain accounting entries in the Employer's
books and ledger still reflected the G & R Lumber name.
Vanderhoof explained that managers received their com-
pensation based on their individual performance in their
units, so it was important to distinguish those accounting
entries through fiscal 1987.110
General Counsel's Exhibits 30(a) through (m) are
copies of certain pages from the Employer's ledger
during the period from 31 August 1986 through 30 No-
vember 1986 and certain pages from the general ledger
durng the period from December 1986 through 31
March 1987. The number " 10" refers to the Morgan Hill
facility. The number "11" refers to the Cloverdale
wholesale division. The number "40" refers to the re-
manufacturing operation at Cloverdale. The number
"45" refers to the sawmill operation at Cloverdale. The
term "intracompany" refers to transactions within the
Redwood Empire corporation. The numbers "11 61 10"
refer to expenses assigned to vehicles operated out of
Cloverdale. Vanderhoof explained that the Employer
had trucks which were assigned to the Employer's Clo-
verdale facility , but for accounting purposes , the ex-
penses regarding those trucks were assigned to Morgan
Hill.
109 The findings in the foregoing paragraphs are based on credited
portions of the testimony of Vanderhoof and on documentary evidence.
110 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof
389
General Counsel 's Exhibits 33(a) through (f) are copies
of certain pages from the Employer 's "Income Statement
and Analysis" for the periods ending 31 January 1987
and 28 February 1987. General Counsel's Exhibit 28 is a
copy of a G & R Lumber invoice dated 31 March 1987.
General Counsel 's Exhibit 29 is a copy of an invoice of
Redwood Empire dated 25 March 1987. General Coun-
sel's Exhibit 30 is a copy of a G & R Lumber invoice on
a Redwood Empire form dated 31 March 1987. General
Counsel's Exhibit 31 is a copy of a G & R Lumber in-
voice dated 30 March 1987.111
On 15 May 1987 Gulermovich telephoned the Em-
ployer's Cloverdale facility. The unidentified person who
answered the telephone said "G & R Lumber."' 1z
At the time that Burch testified at the hearing on 15
May 1987, the net worth of Burch' s businesses was in
excess of $ 10 million . In 1986 the businesses had just
under $60 million in sales on an unconsolidated basis and
about $43 million or $44 million on a consolidated
basis.113
General Counsel 's Exhibit 21(b) is a copy of the Em-
ployer's mission , objective, and goals for its fiscal year
1988 which runs from 1 April 1987 to 31 March 1988.
Among other things, one objective was "build forms,
pour concrete footings and erect three (3) prefabricated
metal lumber storage buildings at Morgan Hill." One of
the Employer 's goals was for "Preliminary planning and
engineering for Cloverdale facility expansion : Three stor-
age buildings , vehicle wash area, vehicle fuel and service
area and a water storage pond for fire protection."
Respondent's Exhibit 13 is a copy of Pacific States In-
dustries fiscal 1988 mission, goals, and objectives. Re-
spondent 's Exhibit 14 is a copy of the Employer's pro
forma business plan for fiscal 1988 for the Morgan Hill
division. Respondent 's Exhibit 15 is a copy of the pro
forma business plan for fiscal 1988 for the Cloverdale di-
vision. 114
Vanderhoof said the Employer had no plans to return
the Employer 's trucks to its Morgan Hill facility. Van-
derhoof said he was not aware at the time of the hearing
of any plan by the Employer to close down the Morgan
Hill facility in its entirety.' 15
Q. Conclusions
In paragraphs 6(a)(i) through (v) of the General Coun-
sel's complaint , the General Counsel alleged the follow-
ing to be violations of Section 8(a)(1) of the Act:
6.
Respondent , at it Morgan Hill, California facility:
111 The findings in the foregoing paragraphs are based on credited
portions of the testimony of Vanderhoof and on documentary evidence
112 The foregoing findings are based on credited portions of the testi-
mony of Gulermovich.
113 The foregoing findings are based on credited portions of the testi-
mony of Burch.
114 The findings in the foregoing paragraphs are based on documenta-
ry evidence.
115 The foregoing findings are based on credited portions of the testi-
mony of Vanderhoof.
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Acting through Naughton, on or about No-
vember 10, 1986:
(i) Interrogated its employees regarding their
Union membership, activities, and sympathies and
the Union membership , activities, and sympathies of
their fellow employees;
(ii) Threatened its employees with discharge if
they selected the Union as their bargaining repre-
sentative;
(iii) Threatened its employees with loss of bene-
fits if they selected the Union as their bargaining
representatives;
(iv) Threatened its employees with harsher work-
ing conditions if they selected the Union as their
collective bargaining representative;
(v) Threatened its employees with a constructive
discharge if they selected the Union as their collec-
tive bargaining representative.
Based on the findings of fact set forth in section L of
this decision, I conclude that the General Counsel pre-
sented evidence which established the allegations in para-
graph 6(a) of the General Counsel 's complaint.
I conclude that Naughton's questioning of Weaver on
10 November 1986 in Naughton's office was coercive
under all of the circumstances . The questioning of
Weaver took place in the context of Naughton's threats
of discharge and other threats if the employees selected
the Union as their collective-bargaining representative.
In past years the Respondent had expressed hostility
against the employees' having a union to represent them
at the Morgan Hill facility. Thus, the questioning took
place not only in a background of the Respondent's
animus toward the Union, but also in the context of
threats being made in the same conversation as to what
would happen if the employees selected a union to repre-
sent them.
With regard to the information sought by Naughton,
the questioning pertained to whether there had been
union activity among the employees; whether there had
been a union meeting ; who was present at the union
meeting; whether employee Gulermovich was involved
in union activities ; and whether the employees had
signed anything.
With regard to the identity of the questioner,
Naughton held the position of general manager of the
Employer. With regard to the place of the interrogation,
the conversation took place in Naughton's office.
Under all of these circumstances , I conclude that
Naughton's questioning of Weaver was coercive and vio-
lative of Section 8(a)(1) of the Act. Rossmore House, 269
NLRB 1176 (1984); Sunnyvale Medical Clinic, 277 NLRB
1217 (1985); and Well-Bred Loaf, Inc., 280 NLRB 306
(1986).
As indicated above, I also conclude that Naughton
made threats of discharge and other threats during the
same conversation with Weaver. The threats were made
in the context of the questioning and the conversation
about the employees ' union activities . Thus, Naughton
threatened that Burch would shut down the Morgan Hill
facility; contract out the work; and sell the equipment.
Naughton also indicated that people who were unhappy
with working for the Employer, and, therefore, engaged
in union activities , should quit their jobs . Naughton fur-
ther told Weaver that, in order for Weaver to protect his
own job, Weaver was expected to inform the Employer
about the employees ' union activities.
In Naughton 's presence and without any disavowal by
Naughton , dispatcher Langjahr also made threats as to
the changes in the employees ' working conditions if they
selected the union to represent them.
I conclude that the threats made by Naughton and the
threats made by Langjahr in Naughton 's presence and
without any disavowal by Naughton, were violative of
Section 8(a)(1) of the Act. Pottsville Bleaching Co., 277
NLRB 988 (1985); Moe Warehouse & Accessory, 275
NLRB 1132 ( 1985).
I recognize the fact that it was admitted in the plead-
ings that Langjahr , as well as Naughton , at all times ma-
terial herein had been a supervisor within the meaning of
Section 2( 11) of the Act and an agent of the Respondent
within the meaning of Section 2(13) of the Act. Thus, I
conclude that the threats made by Langjahr were attrib-
utable to the Respondent even if Naughton had not been
present . However, the General Counsel 's allegations in
paragraph 6(a) of the General Counsel's complaint only
alleged Naughton as the Respondent 's agent who com-
mitted the unfair labor practices alleged in paragraph
6(a).
In paragraph 6(b) of the General Counsel's complaint,
the General Counsel alleged the following to be in viola-
tion of Section 8(a)(1) of the Act:
6.
Respondent , at its Morgan Hill , California facili-
ty:
(b) Acting through Langjahr, on or about No-
vember 12, 1986 , interrogated an employee regard-
ing his Union membership , activities , and sympa-
thies and the Union membership , activities and sym-
pathies of his fellow employees.
Based on the findings of fact set forth in section N of
this decision , I conclude that the General Counsel pre-
sented evidence which established the allegations in para-
graph 6(b) of the General Counsel's complaint.
I conclude that Langjahr's questioning of Vazquez on
12 November 1986 at the Morgan Hill facility was coer-
cive under all of the circumstances. The questioning took
place against a background of the Employer's expressed
hostility against its employees organizing a union at the
Morgan Hill facility . That union animus had been ex-
pressed in earlier years and again on 10 November 1986.
With regard to the nature of the information sought by
Langjahr, the information pertained to the identity of
employees who had attended a union meeting and
whether Vazquez had signed a union card.
With regard to the identity of the questioner, Langjahr
had been the immediate supervisor of Vazquez and the
one who had informed Vazquez of his termination short-
ly before the conversation in question.
REDWOOD EMPIRE 391
While Vazquez was no longer an employee of the Re-
spondent at the time of the conversation , I conclude that
Vazquez still was an "employee" as that term is defined
in a broader sense in Section 2(3) of the Act. Thus, I
conclude that although Vazquez was not an employee of
that particular respondent at the time, Vazquez still had
the protection of the Act as being a person who met the
definition of an employee in Section 2(3) of the Act.
Moreover , after Vazquez told Langjahr that Vazquez
and Sproat had not signed cards, Langjahr replied that
he would talk with Naughton about them to help pre-
serve their jobs . Thus, I conclude Langjahr's reply indi-
cated to Vazquez that there was a link or connection be-
tween not signing union cards and having continued em-
ployment with the Respondent.
Under all of these circumstances , I conclude that
Langjahr's questioning of Vazquez was coercive and vio-
lative of Section 8(a)(1) of the Act. Rossmore House,
supra ; Sunnyvale Medical Clinic, supra ; and Well-Bred
Loaf, Inc., supra.
In paragraphs 7 and 8 of the General Counsel's com-
plaint, as amended , the General Counsel alleged the fol-
lowing to be violations of Section 8(a)(3) and (1) of the
Act:
7.
On or about November 12, 1986, Respondent
changed its trucking operation at its Morgan Hill fa-
cilities and thereupon discharged the following em-
ployees, and since said date has failed and refused,
and continues to fail and refuse , to reinstate them to
their former positions of employment:
Richard Weaver George Vazquez
George Anderson Michael Norton
Donald Sproat William Gulermovich
8.
Respondent engaged in the conduct described
above in paragraph 7 because its employees joined
or assisted the Union or engaged in other protected
concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
With regard to the General Counsel's allegations of
8(a)(3) and ( 1) conduct, I conclude that the General
Counsel presented evidence which established a prima
facie case under the Board 's decision in Wright Line, 251
NLRB 1083 (1980). Of particular significance was the
timing of the termination of the Morgan Hill truckdriv-
ers. The evidence showed that the Respondent terminat-
ed the Morgan Hill truckdrivers just 1 week after the ini-
tial contact with the union had been made and just 4
days after the first union meeting had been held.
I further conclude that the evidence established that
the Respondent had knowledge on 8 November and
thereafter that the Union had held a meeting that day for
the Morgan Hill employees at The Capri Restaurant and
that the employees had signed union cards . Bennett, a
statutory supervisor, was present at the union meeting.
I also conclude that the General Counsel presented
evidence that the Respondent terminated the Morgan
Hill truckdrivers without any prior notice and in what
appeared, at first, to be a hasty and abrupt action which
occurred very soon after the employees had begun union
organizational activities . The evidence revealed that
none of the Morgan Hill truckdrivers were offered the
opportunity to transfer to the Cloverdale facility. The
evidence also showed that the Respondent 's insurance
coverage did not change or improve as a result of the
Respondent 's consolidation of its trucking operations at
Cloverdale.
I also conclude that the evidence established that the
Respondent has expressed its animus or hostility to its
employees ' union organizational activities . The violations
of Section 8(a)(1) of the Act already have been dis-
cussed . In addition , around December 1984 or January
1985 Burch told Santos that he would shut down the
Morgan Hill facility and fire the truckdrivers if the em-
ployees organized a union at the Morgan Hill facility.
The evidence showed that Burch also told Santos that he
would rather lose money by moving to Cloverdale than
have the Morgan Hill facility unionized , and that he
would not allow a union to go in the Morgan Hill facili-
ty under any circumstances.
Further, the evidence showed that in January 1986 or
February 1986 Naughton told Weaver that Burch would
shut down the facility if anything happened like the
letter he had received from the employees who wanted
more money and benefits.
Langjahr told Anderson that, if anyone tried to get a
union in or to get a raise, Burch would not stand for it
and would go to any extent to keep the union out.
I conclude that the evidence summarized above and
the 8(a)(1) unfair labor practices found herein established
the Respondent 's animus towards its employees' union
activities.
Although I have concluded that the General Counsel
has established a prima facie case under the Board's
Wright Line decision , I further conclude that the Re-
spondent has presented evidence which demonstrated
that the same action would have taken place even in the
absence of the employees ' union activities. Wright Line,
supra . Specifically , the Respondent has shown that, prior
to the start of the employees ' union organizational activi-
ties, the decision was made by Burch on 4 November
1986 to close the Morgan Hill trucking operation and to
consolidate the Employer 's trucking operations at the
Cloverdale facility.
As early as 1983 Burch and Naughton began discus-
sions about using the "hub concept" and about consoli-
dating the Respondent 's trucking operations at one facili-
ty. The consolidation of the Respondent 's trucking oper-
ations was just one part of what came to be the Employ-
er's overall plan. Having a certralized maintenance facili-
ty; consolidating inventories ; eliminating the division of
the Respondent 's sales territories ; developing and ex-
panding the Cloverdale facility; and acquiring the Philo
facility also became part of the Respondent 's planning.
The evidence showed that the Respondent has invested
substantial sums of money to expand its Cloverdale facili-
ty and to acquire the Philo facility.
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I conclude that the evidence established that one of
the goals at the upper level management meeting held on
12 February 1985 was to expand the Respondent's Clo-
verdale facility and to establish Cloverdale as a hub for
the Respondent 's truck operations . I conclude that the
foregoing also was a goal discussed at the upper level
management meeting held the week of 12 February 1986.
The timetable at the meeting for consolidating the Re-
spondent's trucking operations at Cloverdale was to be
sometime during the Respondent 's 1987 fiscal year,
which ran from 1 April 1986 to 31 March 1987. Later
on, Burch and Vanderhoof discussed their hope to con-
solidate the trucking operations at Cloverdale sometime
between 1 July 1986 and 30 September 1986. Thus, I
conclude that the Respondent 's plans were made prior to
the employees ' union organizing activities at Morgan
Hill.
Although the termination of the Morgan Hill drivers
had not been expressly stated , the evidence showed that
the Respondent 's past practice had been not to transfer
hourly paid employees from one location to another lo-
cation except in rare instances . Naughton estimated the
distance between Morgan Hill and Cloverdale to be ap-
proximately 225 miles . In the opinion of Naughton, none
of the Morgan Hill truckdrivers lived within a reasona-
ble proximity to Cloverdale. Whether the Respondent
should have offered its Morgan Hill truckdrivers trans-
fers to the Cloverdale facility must be considered in the
context of the Respondent 's own past practice.
In its decision in FPC Advertising, Inc., 231 NLRB
1135 (1977), the Board held at 1136:
Board law does not direct or permit the trier of
fact to substitute his business judgment , which is not
a fact of record, for that of the Respondent. An em-
ployer's business conduct is not to be judged by any
standard other than that which it has set for itself.
In view of the Respondent 's own past practice regard-
ing transfers , I conclude that it was not discriminatory
for the Respondent not to offer the Morgan Hill truck-
drivers transfers to Cloverdale.
As indicated in the findings of fact, I found Burch's
testimony to be credible that he made the decision on 4
November 1986 while en route to Hawaii to consolidate
the Respondent 's trucking operations by closing down
the trucking operation at Morgan Hill and by moving
the trucks to the Employer's Cloverdale facility . The tes-
timony of Vanderhoof and Naughton lent support to
Burch 's account because his decision was communicated
to them the next day on 5 November 1986. Burch made
it clear that he wanted Naughton to implement Burch's
decision 1 week from that day. Thus, it was clear on 5
November 1986 that Burch's decision was to be imple-
mented on 12 November 1986.
At the point in time that Burch made his decision on 4
'November 1986, the employees ' union organizational ac-
tivities had not yet begun . It was after a drivers' meeting
had been held on 5 November 1986 that the first contact
was made with the Charging Party Union with regard to
representing the Morgan Hill truckdrivers and yard em-
ployees . The first union meeting was held on 8 Novem-
ber 1986 . The Union 's representation petition was filed
on 13 November with NLRB. Therefore, I conclude that
the decision to close down the Employer 's trucking op-
eration at Morgan Hill and to consolidate the Employer's
trucking operations at Cloverdale was made prior to the
start of any union organizing activities among the
Morgan Hill employees.
I conclude from the evidence that the manner in
which Burch made his decision 4 November 1986 was
consistent with what was described to be his past man-
agement style . Burch 's manner was said to be aggressive
and oftentimes abrupt in making his decisions. I also
have considered the fact that Burch was the sole owner
of Redwood Empire . In view of that fact, Burch was
free to act quickly and decisively without the need to
consult with others, if Burch chose not to do so . As sole
owner, Burch was not answerable to any other share-
holders.
I also conclude from the findings of fact that Burch
experienced anger and frustration with regard to the Re-
spondent 's continuing difficulty in obtaining from insur-
ance companies what Burch perceived to be appropriate
liability insurance coverage. That anger and frustration
over the Employer's insurance problems precipitated his
decision to act on the Respondent's pending plan to con-
solidate the trucking operations at the Cloverdale facili-
ty. I have considered the fact that Burch was upset and
displeased on 2 November 1986 when Vanderhoof told
him about the lack of any liability insurance coverage for
the Employer at that point in time, and the Employer's
inability to obtain a $10 million umbrella policy from an
insurance company . I have considered the General
Counsel's argument regarding the emotional nature of
Burch 's testimony , but I found him to be convincing.
The General Counsel argued , in part , at page 36 of her
posthearing brief:
Indeed , at the hearing, Burch appeared to testify
with visible anger over his inability to obtain the in-
surance coverage he allegedly desired . He peppered
his testimony with profanity and stories about insur-
ance problems he had experienced when he first
began his business , some 20 years before . (Tr. 1007).
However, despite all the theatrics , Burch admitted
that when he had insurance problems in the past he
had never restructured his operation or fired
anyone.
As indicated above, I conclude that Burch did testify
with considerable emotion, but I found to be convincing.
In that connection Burch did relate his own past experi-
ence in 1972 or 1973 when one of his trucks was in-
volved in an injury accident, and the amount of the
injury exceeded his insurance liability limit . That seems
to have made a lasting impression on Burch because he
had to pay out-of-pocket an amount equal to 20 percent
to 25 percent of the net worth of his business at that
time . While Burch had not restructured his operations in
previous years because of insurance problems, the differ-
ence here was that the consolidation of the trucking op-
erations at Cloverdale already had been planned and was
to take place during that fiscal year.
REDWOOD EMPIRE 393
I have considered the fact that the consolidation of the
Employer's trucking operations at the Cloverdale facility
did not solve the Employer 's insurance problems, nor did
it enable the Employer to obtain at that time the amount
of umbrella insurance coverage the Employer desired.
The abrupt consolidation also resulted in the Employer's
increased use of subhaulers . Nevertheless , the Board has
held: "The Board 's authority to evaluate the Respond-
ent's business conduct extends only to the determination
of whether the conduct is discriminatorily motivated or
otherwise in violation of the Act." Gem Urethane Corp.,
284 NLRB 1349 , 1350 (1987). In that case , the Board
gave consideration to such factors as the other unfair
labor practices found therein ; the timing of the layoff of
employees in that case ; and the fact that a majority of
the employees had signed union cards . The Board held
that such factors properly should be considered in deter-
mining whether a layoff was unlawful . However, in the
circumstances of that case , the Board found that those
factors were outweighed by that Respondent 's economic
defense; and the Board dismissed the 8 (a)(3) and ( 1) alle-
gations pertaining to the layoff.
As indicated above, I have concluded from the evi-
dence in this case , that Burch made his decision to have
the trucking operations consolidated at Cloverdale before
union organizing activities began among the Morgan Hill
employees. Therefore, I conclude that the Respondent's
decision made prior to union organizing activities to con-
solidate its trucking operations at Cloverdale and to im-
plement that decision within 1 week was not "discrimina-
torily motivated or otherwise in violation of the Act."
Gem Urethane , supra . Having reached that conclusion, it
becomes immaterial whether the consolidation of the
trucking operations actually resolved the Respondent's
insurance problems.
After considering all of the credited findings of fact
and the legal arguments made by the General Counsel
and the Respondent , I conclude for the reasons stated
above that a preponderance of the evidence does not
support the allegations in paragraphs 7 and 8 of the Gen-
eral Counsel 's complaint as amended . Accordingly, I rec-
ommend to the Board that the allegations in those two
paragraphs be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Charging Party union is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act by
coercively interrogating employees regarding their union
membership , activities , and sympathies , and the union
membership , activities , and sympathies of their fellow
employees.
4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (a)(1) of the Act by
threatening employees with discharge , loss of benefits,
harsher working conditions, and constructive discharge,
if its employees selected a union as their collective-bar-
gaining representative.
5. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices , I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The General Counsel has requested the issuance of a
bargaining order as a remedy for the Employer's unfair
labor practices under the holding in NLRB v. Gissel
Packing Co ., 395 U.S. 575 ( 1969). I conclude that the
Board 's traditional remedies are sufficient and appropri-
ate to remedy the unfair labor practices found in this de-
cision . Moreover, for nondiscriminatory reasons, the
Morgan Hill unit no longer exists insofar as the Morgan
Hill truckdrivers are concerned . I deny the General
Counsel's request.
The General Counsel also has requested that a visita-
torial clause be included in the Order . I conclude that
the evidence presented in this proceeding does not estab-
lish the necessity for such a visitatorial clause . Accord-
ingly, I hereby deny the General Counsel 's request.
Cherokee Marine Terminal, 287 NLRB 1080 ( 1988).
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend-
ed116
ORDER
The Respondent, Redwood Empire, Inc., Morganhill,
California, its officers , agents , successors , and assigns,
shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their
union membership , activities, and sympathies and the
union membership , activities , and sympathies of their
fellow employees.
(b) Threatening employees with discharge , loss of ben-
efits, harsher working conditions , and constructive dis-
charge, if its employees select a union as their collective-
bargaining representative.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Morgan Hill , California facility copies of
the attached notice marked "Appendix."' 17 Copies of
11a If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
117 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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."
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the notice , on forms provided by the Regional Director
for Region 32, after being signed by the Respondent's
authorized representative , shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT coercively interrogate you regarding
your union membership , activities , and sympathies and
the union membership , activities, and sympathies of your
fellow employees concerning Freight Construction, Gen-
eral Drivers , Warehousemen & Helpers, Teamsters Local
287, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, AFL-CIO or any
other labor organization.
WE WILL NOT threaten you with discharge, loss of
benefits, harsher working conditions , and constructive
discharge , if you select a union as your collective-bar-
gaining representative.
WE WILL NOT any like or related manner interfere
with , restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
REDWOOD EMPIRE, INC.