Sam Aria Hauling & Excavating Co.

National Labor Relations Board - Board Decisions

Sep 29, 1971

193 N.L.R.B. 436 (N.L.R.B. 1971)

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sam Aria , d/b/a Sam Aria Hauling & Excavating Co.
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Local 428. Case 6-CA-5356
September 29, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 25, 1971, Trial Examiner Thomas A. Ricci
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner further found that the Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint and recommended that the com-
plaint be dismissed with respect to those allegations.
Thereafter, the General Counsel filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Sam Aria, d/b/a Sam Aria Hauling
& Excavating Co., Weirton, West Virginia, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of the Act
other than those found herein.
I The General Counsel has excepted to certain credibility findings made
by the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-captioned case was held before the duly designated
Trial Examiner on May 20, 1971, at New Cumberland,
West Virginia, on complaint of the General Counsel against
Sam Aria, d/b/a Sam Ana Hauling & Excavating Co.,
herein called the Respondent or the Company. The charge
was filed on January 29 and the complaint issued on March
31, 1971. The principal issue of the case is whether an
employee of the Respondent was discharged in violation of
Section 8(a)(3) of the Act. Briefs were filed by the General
Counsel and the Respondent.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an individual proprietorship, has its
main office in Weirton, West Virginia and is engaged as a
common motor carrier in the business of transporting
goods in the States of West Virginia, Pennsylvania, and
Ohio under a Certificate of Public Convenience and
Necessity issued by the Interstate Commerce Commission.
During the 12-month period preceding issuance of the
complaint, the Respondent received in excess of $50,000 for
services rendered in connection with the transportation of
materials across states lines to and from the State of West
Virginia. I find that the Respondent is engaged in
commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise jurisdiction
herein.
11. THE LABOR ORGANIZATION INVOLVED
I find that International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local
428, herein called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There are two allegations of substance in the complaint.
One is that owner Sam Aria, of the Respondent, a volatile,
somewhat excitable, partially paralyzed, and at times
almost irrational old man, gave vent to his irritation at
having to have anything to do with the Teamsters Union by
"hollering" all sorts of threats and imprecations at the 10 or
so drivers employed by the Company. In colorful language
some of his outbursts were recalled by employee witnesses.
He, Aria, sat in at the hearing, several times had to be
restrained while his employees told the story, but never
testified. Of course I find he made all the coercive
statements attributed to him by the drivers; it was enough
to look at him in the courtroom-quite apart from the fact
he denied nothing-to see his resentment at the whole
union idea. Curiously, however, while all this was going on
193 NLRB No. 69
SAM ARIA HAULING 437
there was a Board election among the employees on
December 17, 1970, all seven of the nine eligible men who
voted designated the Union, and, after Board certification
on December 28, there followed a series of negotiation
conferences attended by Aria and the company lawyer.
And, indeed, 2 months before the hearing a collective-
bargaining agreement , acceptable to both parties, was
completed and signed.
In fairness I must say I doubt very much Sam Aria,
despite his seeming dotage, would be capable of carrying
out the least of his voluble fulminations In the lawyer's
office he waved a knife over the head of Harold Reese,
president of the Teamsters Local: "I should have killed you
15 years ago." But somehow no one was hurt, and Reese
seemed more amused in the retelling than offended at the
recollection. It must have been the same turbulence of mind
that brought Aria to scuffle with a policeman behind the
company garage on another day. The cop was having
enough trouble trying to manacle him without contrary-
minded Mrs. Aria pressuring him from behind. In the end,
at the station house, all the officer did was remove the
handcuffs and send Aria home, no doubt with an
admonition to behave himself. It would appear that both
the policeman and Mrs. Aria were more concerned with the
chances the old man might hurt himself than with any
possibility of danger to others. Certainly this was the view
of Robert Barker, the driver who ran to Aria's aid that day,
helped fold him into the squad car, and then solicitously
drove him back from the police house, because, as he
testified , he liked the old man: "Mr. Aria and Mrs. Aria to
me wasjust like parents."
The second complaint allegation is that the Respondent
discharged this same Barker on January 22, 1971, because
of his pro-Teamsters activities and thereby violated Section
8(a)(3) of the statute . The Company denies any illegal
motivation in its treatment of Barker and affirmatively
asserts it stopped using him only because there was not
enough work. I find the evidence in its totality insufficient
to support a finding that Barker was illegally discharged
and shall therefore recommend dismissal of the complaint
as to him
Barker first came to work for the Respondent on
December 29, 1970, 12 days after the Board election, and
therefore had nothing to do with bringing the Union into
the Company. He was not enthusiastic about the Team-
sters; at the hearing he said he never expressed approval of
the Union on the job, or to the Arias, and indeed he added
he "might have" told them he was "mad" at the Teamsters
because of an ancient gripe against Reese, the local
president. "I said that I would not stand out in front on any
strike with the union; I was not going to face Sam and strike
I said I would go along with the majority; if the men
said they were going to strike I would not go to work."
Barker worked only about 3 weeks, from December 29 to
January 22, a Friday. That Friday evening he telephoned
Mrs. Aria to inquire whether he was needed the next day;
she said , as Barker testified, "no, they was only going to use
five trucks, and they wouldn't need me." He added he
called again several times during the week, but Mrs. Aria
repeated "she just didn't have any work."
Five of the employees met with Reese at the union hall on
Saturday afternoon, January 23, where among other things
there was talk about striking. The case against the
Respondent, according to the General Counsel, rests upon
Barker's activities in connection with this meeting. It is said
that he was the moving force both in bringing the meeting
about and in instigating the others towards strike action. A
fair reading of the record shows otherwise. The truth of the
matter is Barker's prime concern was to prevent the
employees from doing any such thing as striking. A week
earlier there was talk among them of resorting to strike
because they were dissatisfied with the progress of the
contract negotiations going on between Reese and the
Company's lawyer. Barker's testimony is that he became
involved in these discussions because "They would have
pulled an illegal strike. . . . It would have been a wildcat
strike," and he did not want the employees to do that. He
suggested they speak to Reese first, and it was decided
Thomas Darrah would telephone Reese to inquire. Darrah
called but was unable to reach the union agent ; because a
call would be local, and therefore free to Barker, but a toll
charge to Darrah, Darrah asked Barker to make the call
later from his home. Barker finally spoke to Reese in the
evening, the union president said the employees should not
stnke because he was still negotiating, and Barker then
passed the word back to the other drivers-"I told them not
to strike."
As to what happened when five drivers met with Reese
the following Saturday afternoon, there is a significant
variance between the testimony of Reese and that of
Barker, as well as between Reese's testimony and the
minutes he made of the meeting at the time . Reese recalled
that he first told Barker the men should not strike-when
Barker reached him by phone on January 18, and then
repeated the admonition 2 days later when he talked to
Darrah on the telephone and arranged to meet the men a
few days later. He went on to testify that at the meeting:
"They brought up a motion to strike, and it was seconded
and passed unanimously.. . . Mr. Barker, I think made the
motion to go on strike, and Mr. Darrah seconded the
motion." The motion, whatever it was, carried . Barker's
testimony is that it was not a motion to strike, but rather:
"A motion to let him [Reese ] decide when to strike; not to
strike, to let him, so we would be legal."
The story of what really happened that day appears
clearly in Reese's contemporaneous minutes. They say that
he started by reporting on the details of his negotiations,
informed the men the next meeting with management
would take place on Monday, the 25th, and "if I can't settle
for present contract, I want the right to strike at any time."
It was after this, that there came Barker's motion , according
to the minutes, "to give the Union the right to strike if neg.
fails."
It appears, therefore, that if anyone was pressuring the
employees into a striking mood, it was Reese , not Barker.
The employee remained, from first to last, lukewarm at best
on the subject of pushing the concerted activities to the
detriment of the Company.
In contrast, the affirmative defense that he was released
because the Respondent no longer needed Barker finds
much support in the record. He had been there only 3 1/2
weeks and already on two earlier occasions had gone
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without work because there was not enough for him to do.
Passing over employees in this fashion is not uncommon
with this Company Darrah, a witness for the General
Counsel, first hired on August 17, 1970, left on September
9. He returned on October 29 and was laid off for lack of
work on November 9. He returned later and then quit.
After Barker left on January 22, no other regular employee
was hired until the first or second of March, when work
picked up.i Mrs. Aria's testimony that the principal
customer-Mike Starvaggis-reduced the number of trucks
it needed that week stands uncontradicted. Even Darrah
said Barker did not work on Monday, January 25, because
of "lack of work. They only worked five trucks that day."
There was much talk at the hearing about Barker being
careless with his truck; it broke down in his hands twice in
the short period he worked, the second time as he returned
at the end of his shift that last Friday. Others had trouble
with their trucks also, and it is not claimed Barker was
released because of his relative incompetence What does
stand out as a significant fact is he had been there probably
less time than anyone else on the payroll. As Mrs. Aria said,
the customer "didn't even use no truck; they only used two
one day. They didn't have much work.. .. I had to let the
older fellows do it."
There remains certain testimony of Frank Galiano and
Darrah about the outbursts of Sam Aria, the old man, to be
considered. Galiano, also a truckdriver employee: "Well,
he dust said something one day down there about Barker
called Cincinnati, or Columbus, some place, called Reese,
and he was hollering about that, I mean because he called
him. . . He says, `I'm going to fire him. He called
Columbus ...,' I don't know where it was, I don't know
actually where it was `I'm going to fire him. He called Mr.
Reese up clear to Columbus, Ohio' or Cincinnati, where
ever he was at, now, I don't know for sure." Darrah testified
that on Monday, January 25, Aria "wanted to know if I was
the one that called Mr. Reese up in Ohio. And I told him it
wasn't me. And he said, Then it must have been Barker. He
said Barker was fired because he was split-shifting gears on
Pennsylvania Avenue, and for calling Mr. Reese."
There is something wanting in this testimony. Barker
made clear he said nothing about his talk with Reese to
either Mr. or Mrs. Aria, and there is no explanation of how
Sam Aria could have known about it the week before the
union meeting on the 23d. But if he believed at that time
Barker had invited Reese to Steuvenville, why would he ask
Darrah on Monday whether he, Darrah, had been the
finger man? Further, by that time Barker had already been
told by Mrs. Aria his services were not needed, and this is
the time the man was discharged, according to the
complaint. The unlawful reason-Barker's call to Reese-if
first learned after the discharge, could hardly in fact have
caused the earlier dismissal.
This rather convenient testimony by Galiano and Darrah
calls to mind Reese's attempt, at the hearing, to build up
Barker's pro-Teamsters, or prostnke, activity. When Barker
telephoned Reese at an out-of-town hotel, Reese was not
there and the girl made a note of the call. Reese called back
that night. When Reese decided he wanted to meet with the
men, where, as the minutes of the meeting show, he
demanded "the right to strike," it was not Barker he called
to arrange the meeting, but Darrah; Darrah was the man
picked by the drivers in the first instance to communicate
with the union president. As Reese would have it, at the
meeting he waved the telephone call note made by the
switchboard girl, held it over his head so all could see. Why
this emphasis on Barker when Darrah was the touchstone
between Reese and Aria's boys? Reese has a tendency to
build without substance. On January 29 he filed a charge
with the Board alleging that Darrah had been discharged
because of his union activities. But Darrah testified he
worked continuously to the 28th and was only that evening
told there would be no work for him.
There is one other aspect of this case that merits
consideration. The record as a whole strongly indicates it is
Mrs. Aria, not her husband, who runs this business, and
who made whatever decision was made concerning
Barker's continued employment. Asked what she did for
the Company, she started by answering: "Just take care of
the business, and all that sort of stuff." It was she who hired
Barker in the first instance: "He kept calling me for ajob,
so I gave him a job." It seems all applicants apply to her.
"They keep calling me, they say they need a job, and I tell
Sam, I say, `Well, he needs a job,' so he gives it to them."
She discharges people. When Barker had trouble with his
truck, he called her to advise her of the fact. When other
drivers noticed poor performance by Barker, again they
reported their opinions to her. The company for whom the
Respondent operates its trucks "call me and tell me how
many trucks they want, so I mark it down."
There is no reason for discrediting Mrs. Aria's testimony
that she knew nothing about Barker's union activities;
certainly there is no evidence anyone bothered to tell her.
Her husband shoots his mouth off; he always did and he
always will. This is not the case for automatic application of
any principle that the knowledge of one management
representative is of necessity the knowledge of the company
as a whole. I do believe Mr. Aria said all the things charged
to him by the various employee witnesses, including the
question about who had participated in bringing about the
union meeting of January 23. The fact he asked on
Monday, after the alleged dismissal of Barker, whether
Darrah had been the man, of itself raises a serious doubt
whether any possible illegal intent of Sam Aria had
anything to do with this aspect of the case.
Considering the character of Barker's union
activity-really favorable to rather than against the
interests of the Company, the objective persuasiveness in
the affirmative defense of discharge for cause, the fact it
was Mrs. Aria and not her vocally antiunion husband who
dealt with the driver at all times in his employment, and
other related matters, I conclude that the evidence as a
whole does not suffice to prove Barker was discharged
because of his participation in union affairs. The following
employee testimony is not entirely irrelevant. Frank
Galiano: "Q. On occasion have you made the observation
that no one should take Sam too seriously because of his
age? A. Yeah." Thomas Darrah: "Q.... but you really
I On this subject I credit Mrs Aria Employee witnesses testified others wrong outright in the light of other parts of the record
were hired, but they were either too vague or otherwise unreliable, at times
SAM ARIA HAULING 439
didn't take him seriously, did you, yourself, personally? A.
No. We'd overlook him a lot of times." Again Thomas
Darrah: "On several mornings-well, he was always
saying-well, some mornings he said he'd sign up with the
union ; some mornings he said he wouldn't sign up with the
union."
Whether or not he is rational at all times, the fact remains
Sam Aria is the nominal owner of this Company, and his
wife, despite the clear evidence she is the operational head
of the business, did say at the hearing: "My husband, I
guess he 's the boss ." I must find therefore that by the
following statements by Sam Aria the Respondent violated
Section 8(a)(1) of the Act: that the Respondent did not
want the Union in its affairs and would close down its
business if necessary in order to avoid dealing with the
Union; that it would sell its trucks and discharge all its
employees if they persisted in their union activities; that the
Respondent would never sign a contract with the Union;
and that it would give its employees a raise if an
independent union could be found to replace the Teamsters
as bargaining agent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations set forth
in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 2
ORDER
The Respondent, Sam Aria, d/b/a Sam Aria Hauling &
Excavating Co., Weirton, West Virginia, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from threatening its employees with
closure of its business in order to avoid dealing with their
Union, threatening to sell its equipment and to discharge
employees to discourage their union activities, telling its
employees it would refuse to sign a collective- bargaining
agreement with their Union, or promising raises to its
employees as an inducement to abandon their chosen
representative.
2. Take the following affirmative action which is found
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Weirton, West Virginia,
copies of the attached notice marked "Appendix."3 Copies
of said notice, on forms to be provided by the Regional
Director for the Region 6, after being signed by the
Respondent, Sam Ana, personally, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith?
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with closure of its
business in order to avoid dealing with their Union, by
threatening to sell its equipment and discharge employees
to discourage their union activities, by telling its employees
it would refuse to sign a collective-bargaining agreement
with their Union, and by promising raises to its employees
as an inducement to abandon their chosen union represent-
ative , the Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
2 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
3 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
4 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 6, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To bargain collectively through a representative
of their own choosing
To act together for collective-bargaining purposes
or other mutual aid or protection
To refrain from any or all such activities.
WE WILL NOT do anything that interferes with those
rights. More specifically,
WE WILL NOT threaten to close the business to avoid
dealing with your Union.
WE WILL NOT threaten to sell our equipment or
discharge you to discourage your union activities.
WE WILL NOT say we will not sign a contract with
your Union regardless of your desires.
WE WILL NOT promise to give raises to influence you
to abandon any union of your choice.
You are free to become and remain members of
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 428, or any
other labor organization.
Dated By
SAM ARIA, D/B/A SAM
ARIA HAULING & AND
EXCAVATING CO.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this Notice or compliance with
its provisions , may be directed to the Board's Office, 1536
Federal Building , 1000 Liberty , Pittsburgh , Pennsylvania
15222 , Telephone 412-644-2977.