Terpening Trucking Co.

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 96 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terpening Trucking Co., Inc. and Gene R. Lariviere
Terpening Drivers Association and Gene R. Lari-
viere. Cases 3-CA-I 1101 and 3-CB-4081
29 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 June 1983 Administrative Law Judge El-
eanor MacDonald issued the attached decision.
The Respondent Company filed exceptions and a
supporting brief, and the Respondent Union filed
exceptions. The Charging Party filed a motion to
reject exceptions and the Respondent Company
filed a statement in opposition to the motion to
reject exceptions. I
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 brief and has
decided to affirm the judge's rulings, findings,2 and
1 On 2 August 1983 the Respondent Company filed exceptions and a
supporting brief with the Board, along with a certificate of service assert-
ing that copies had been served on the General Counsel and the Re-
spondent Union. On the same day the Respondent Union filed exceptions
with the Board and on II August 1983 it filed a certificate of service as-
serting that copies had been mailed to the General Counsel and the Re-
spondent Company. On 29 August 1983 Gene R. Lariviere, the Charging
Party, filed a motion to reject exceptions asserting that, since he had
never been served with a copy of the Respondent Union's exceptions and
had only received a "courtesy" copy of the Respondent Company's ex-
ceptions and supporting brief on 23 August 1983, the Respondents' ex-
ceptions and brief should be rejected and the decision of the judge adopt-
ed. On 6 September 1983 the Respondent Company filed a statement in
opposition to the motion to reject exceptions, urging the Board to deny
the motion because the Charging Party did not file a separate appearance
in this proceeding but relied on the General Counsel's representation.
The Respondent Company also argues that the Charging Party has not
suffered any prejudice because he has never expressed any intention to
file cross-exceptions or a brief and never requested an extension of time
to file cross-exceptions after he received a copy of the Respondent Com-
pany's exceptions and brief.
The Charging Party does not contend he has suffered any prejudice
due to the alleged failure to serve exceptions and has given no indication
he would like to file exceptions or a brief of his own. Moreover, Sec.
102.112 of the Board's Rules and Regulations does not require the Board
to vitiate exceptions and adopt an administrative law judge's decision in
the absence of properly served exceptions particularly where, as here, the
charging party has not shown it has been prejudiced, or requested an op-
portunity to file cross-exceptions or a brief. See generally Our Way, Inc.,
244 NLRB 236 (1979), and Cameron Iron Works, 235 NLRB 287 (1978).
The Charging Party's motion is therefore denied.
I In fn. 13 and in the sentence citing to fn. 18 the judge incorrectly
referred to events as occurring in May instead of June 1982. We correct
this inadvertent error.
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.
271 NLRB No.' 17
conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent Company, Terpening Trucking Co., Inc.,
Syracuse, New York, its officers, agents, succes-
sors, and assigns, and the Respondent Union, Ter-
pening Drivers Association, Syracuse, New York,
its officers, agents, and representatives, shall take
the action set forth in the Order as modified.
Insert the following as paragraph A,2(b) and re-
letter the subsequent paragraphs.
"(b) Expunge from its files any references to the
discharges of Gene R. Lariviere and Howard
Bagley on 24 June 1982 and notify them in writing
that this has been done and that evidence of these
unlawful discharges will not be used as a basis for
future personnel actions against them."
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in Syracuse, New York, on February
8, 9, and 10 and March 9 and 10, 1983. The complaint,
dated August 20, 1982, alleges that Respondent Employ-
er interrogated employees, discharged employees Gene
R. Lariviere and Howard Bagley, and deducted dues for
the Union without prior written authorization from the
employees in violation of Section 8(a)(1), (2), and (3) of
the Act, and that Respondent Union fairly failed to rep-
resent Gene R. Lariviere and Howard Bagley and ac-
cepted dues deducted by the Company without prior
written authorization from the employees in violation
Section 8(b)(1)(A).
Respondents deny the material allegations of the com-
plaint, and the Union contends that the alleged discrimin-
atees have not exhausted remedies available to them
under the grievance and arbitration provisions of the col-
lective-bargaining agreement.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Compa-
ny, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a New York corporation with a place
of business in Syracuse, New York, is engaged in the dis-
tribution of light petroleum products. All parties agree
that the Company annually provided services valued in
excess of $50,000 to a company directly involved in
interstate commerce. I find that the Company is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a
96
TERPENING TRUCKING CO.
labor organization within the meaning of Section 2(5) of
the Act.'
II. THE ALLEGED UNFAIR LABOR PRACTICES
There is general agreement about the broad factual
outlines of the instant case; the parties disagree only as to
certain details and the legal conclusion to be drawn from
the facts.
Terpening Trucking is an old, family-owned company
engaged in the transport and delivery of light petroleum
products such as heating oil and gasoline.2 Many of the
15 truckdrivers have been with the Company for a
number of years. 3 Terpening Drivers Association has
represented the employees since approximately 1952,
when it was recognized by the Employer. The Union has
operated in a very informal manner and many of its func-
tions have been social. There has never been an arbitra-
tion proceeding between the Company and the Union,
and collective-bargaining negotiations seem to have been
conducted in a cooperative rather than an adversary
manner. When Gene R. Lariviere and Howard Bagley
were hired in February and October 1980, respectively,
they brought a different perspective to the view of the
appropriate union-employer relationship based on their
experiences working for employers with more militant
unions. Lariviere and Bagley urged their fellow employ-
ees at the Company to question certain company actions
and they attempted to effectuate some intraunion
changes as well.4 These efforts by Bagley and Lariviere
caused friction and antagonism to develop within the
work force and culminated in a lengthy "rap session"
among some employees and members of management in
which the employees angrily complained that Lariviere
and Bagley were disruptive and unpleasant to such a
degree that they were becoming dissatisfied with the
work environment. Bagley and Lariviere were dis-
charged the morning after this talk took place for "har-
assing" their fellow employees. The Union did not file a
grievance nor seek arbitration on their behalf because the
union members agreed with management's termination of
Bagley and Lariviere.
I There was a suggestion at the trial herein that the Terpening Drivers
Association was a social organization and not a labor organization under
the Act. The evidence shows that the Association was founded 30 years
ago, that it regularly enters into collective-bargaining agreements with
Respondent Employer concerning wages, hours, and working conditions,
and that it conducts negotiations with the Employer concerning these
subjects.
a Officers of the Company are: Richard Terpening, chairman of the
board; Charles Terpening, president; Curtis Stiles, vice president; and
George Terpening, secretary-treasurer.
3 The parties agree that the Union is the exclusive collective-bargain-
ing representative of the Company's employees in a unit of "all employ-
ees engaged in the operation and driving of the tank trucks of Respond-
ent Employer excluding guards and supervisors as defined in the Act."
I Richard Chellis, currently president of the Union, testified that he
viewed the Union primarily as a social group. Chellis thought Lariviere
saw the Union as a method of getting more pay for fewer hours of work.
Before Lariviere began working at the Company, the drivers had been
content with the loose way the Union was run and there was no internal
conflict. But Lariviere put pressure on the men in connection with his
goals for the Union and Chellis recalled that Lariviere criticized him
many times in his role as union president. Chellis felt that Bagley held the
same views as Lariviere.
Many of the events described herein took place at the
Club Room Restaurant, a tavern located very near the
Company's premises. The drivers customarily stopped
there for drinks after working hours and union meetings
were often held there in the bar area.
A. Events of 1981
In June 1981, Lariviere testified he ran for the presi-
dency of the Union and was elected at a meeting where
his opponents were Michael Chellis and Bradley Searle.
Chellis was elected vice president and Searle was elected
secretary-treasurer. At the meeting, Lariviere suggested
that the Union propose to management a new 5-day
work schedule to be applicable to all drivers then work-
ing a 6-day week. The membership agreed that the pro-
posal should be presented to management.
The next day, dispatcher Bob Thompson s called Lari-
viere into his office and said he had heard that the latter
had been elected union president. Thompson told Lari-
viere that "generally after a union meeting he got a run-
down of what had occurred." Lariviere said he did not
believe he should discuss this with Thompson, and the
latter then asked about the 5-day workweek proposal.
After Lariviere explained the proposal, Thompson said
he and some other members of management were op-
posed, but that Richard Terpening had already instructed
him to work with Lariviere in implementing the propos-
al.
At a union meeting in July 1981, Lariviere testified, he
presented a revised set of bylaws to the membership, and
these were adopted. In October 1981, an addendum was
adopted requiring the establishment of a special account
"for the purpose of paying expenses in and during the
course of arbitration." The amount was to be not less
than S200 and not more than $400. As a result of the
adoption of the amended bylaws, union dues were in-
creased. In July 1981, Lariviere sought a meeting with
Richard Terpening to discuss a procedure for negotiating
a successor agreement to the one that was to expire on
July 31, 1981. Richard Terpening told Lariviere that in
the past he had drawn the new contract and presented it
to the membership at a meeting. Lariviere said that this
time the members wanted a different procedure; the
Union would like to meet with him, present proposals,
and rewrite the contract. Terpening agreed to use the
new method.
Early in July 1981, drivers Vern Cummings and Wil-
liam Waite were chosen to represent the Union in negoti-
ations. Later, Howard Bagley was substituted for Waite.
In early July 1981, Lariviere accompanied the two men
to Richard Terpening's office for the meeting. Charles
Terpening was there as well. The union representatives
outlined the proposed changes in the contract. Richard
Terpening commented briefly and then he said he would
get back to the Union in a week. Terpening also said that
he agreed to the 5-day work plan but asked that it not be
put into the contract.
Richard Terpening did not get back to the Union
about proposals, and a union meeting was held in early
I The parties agree that Thompson is a supervisor under the Act.
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1981 to discuss the status of the negotiations. The
meeting was scheduled to take place at 5 p.m. Before it
began, Lariviere asked Charles Terpening if he could see
Richard Terpening to get a proposal to present to his
fellow employees. Charles went upstairs to see about
this, but did not return, so Lariviere began the meeting.
After a few minutes, Richard Terpening, Curt Stiles, and
Union Secretary-Treasurer Bradley Searle entered the
room. They sat down and Searle stated that Richard
Terpening would present the new contract. The latter
went through the list of union proposals, indicating
which ones management was disposed to grant. Union
Vice President Michael Chellis then made a motion that
the Company's proposals be accepted. At that point,
Lariviere silently left the meeting with Bagley. Later,
Lariviere saw that the minutes of the meeting showed
that management's proposals were accepted unanimous-
ly.
In early September 1981, Lariviere asked Richard Ter-
pening for a copy of the contract. On receiving it, Lari-
viere signed it.
Driver Arthur Tickner testified on behalf of Respond-
ent Employer. He recalled discussing Lariviere and
Bagley with Richard Terpening after the 1981 contract
was agreed upon.6 Terpening had asked Tickner why
there was still conflict and why drivers were being har-
assed, and Tickner replied that Lariviere and Bagley be-
lieved in confrontation instead of good relations with
management. On another occasion, George Terpening
asked Tickner why the Union needed an arbitration fund
"all of a sudden." Tickner replied that it was called for
in the bylaws and that Lariviere was following proce-
dure under the bylaws. Tickner believed Terpening was
concerned about the fund. Tickner did not know how
Terpening learned about the fund; however, he believed
that anything discussed at the Club Room Restaurant got
back to management very quickly.
In early October 1981, dispatcher Thompson informed
Lariviere that henceforth his day off would be Thursday
instead of Friday. Lariviere called Richard Terpening to
protest the change. Lariviere said that Terpening had
promised that his word was his bond and that certain
matters therefore need not be in writing. Terpening re-
plied that it was for the good of the Company. Lariviere
closed by saying, "Okay .... However, if I am Presi-
dent, the next time the Association contract is to be re-
newed, there will be no verbal agreement."
In November or December 1981, Lariviere resigned as
president of the Union and Chellis became president.
B. The Contamination Incident
In January 1982, Lariviere testified, he committed an
error by failing to unload all the contents of a fuel truck;
this resulted in contamination of some fuel and a mone-
tary loss to the Company. While he was discussing the
problem with Richard and Charles Terpening, Charles
6 Tickner was a credible witness; he had a good recall of events and
made no attempt to shade his testimony to suit any party in this proceed-
ing. Tickner evidenced a rather explosive and frank personality and
tended to exaggerate when he was aroused to anger by the memory of an
unpleasant occurrence; however, he was truthful and did not evade ques-
tions posed by counsel.
asked him, "Are you still hanging around with Howard
Bagley?" When Lariviere said yes, Charles inquired, "Is
he still running his mouth up at the bar about us....
[H]e picked up at a lot of bad habits at Dick's and you
should stay away from him because he is in trouble."'
Lariviere maintained that he was not disciplined for the
error he had committed, but both Richard Terpening
and Stiles testified that Stiles fired Lariviere and Terpen-
ining rescinded the discharge later in the day. The com-
ment about Bagley was not denied and I credit Lari-
viere's testimony about this remark. As will be discussed
further below, I find that both Terpening and Lariviere,
while sincerely attempting to be helpful witnesses, were
not always successful in accurately recalling events of
the past. However, I find that Stiles was a reliable wit-
ness with good recall of the relevant events, who gave
his testimony without being prompted by leading ques-
tions. I credit Stiles' testimony and I therefore find that
Lariviere was terminated and then reinstated.
C. The Medical Insurance Issue
Through 1981, the Employer had not deducted the
cost of medical insurance from the employees' checks,
and the Company had paid for this benefit as provided
by the contract. In January 1982, the Company began to
deduct a weekly amount from the drivers' paychecks for
Blue Cross/Blue Shield coverage. Lariviere discussed
this development with his coworkers. On May 22, 1982,
Lariviere saw Chellis at the Club Room Restaurant and
asked him if he could hold a union meeting to discuss the
medical insurance deductions. The meeting was set for
May 26. On May 24, according to Lariviere, he was
called to Richard Terpening's office where he saw both
Richard and Charles Terpening. Richard Terpening
asked him "what is going on" about the medical insur-
ance and, "What are you doing, riling these fellows up
again?" Lariviere protested that he was not riling the
men up but that there had been some talk and that there
should be a meeting to "lay it all out." Richard Terpen-
ing then showed him a table of insurance rates and said,
"Why don't you tell those guys at the meeting that I just
can't absorb these increased rates." Lariviere replied that
the deductions were unauthorized, illegal, and in viola-
tion of the contract. He invited Richard Terpening to
come to the meeting and explain his position to the driv-
ers. On this occasion, Charles Terpening asked if Bagley
was involved in the insurance matter and Lariviere
denied that he was.8
At the trial herein, Chellis acknowledged that he told
Richard and Charles Terpening that there was a problem
about the medical deductions. In response to a question
from the Terpenings, Chellis also told them that Lari-
viere, Bagley, and Kendall had voiced doubts about the
issue.
I Bagley's former employer, Dick's, had a militant union representing
its employees.
s Bagley testified that at the time of the controversy over medical in-
surance deductions, he told Chellis that he was not doing his job as presi-
dent of the Union because fully paid insurance was guaranteed to the
drivers by the contract.
98
TERPENING TRUCKING CO.
Richard Terpening denied asking Lariviere why he
was "riling up the men." Charles Terpening did not testi-
fy in the instant proceeding and the allegation about his
question was unrefuted. I credit Lariviere's testimony
about this incident. Terpening repeatedly showed a great
reluctance to recall instances of Lariviere's activism, and
I believe that he would be less than reliable when at-
tempting to recall his response to that activism. Further,
Chellis, who testified on behalf of Respondent Employer,
recalled that both Richard and Charles Terpening had
questioned him concerning the views of the employees
on the issue of medical deductions. Thus, I find that Re-
spondent Employer violated Section 8(a)(1) of the Act
when both Richard and Charles Terpening interrogated
Lariviere on May 24, 1982.
At the meeting of May 26, all three Terpenings were
present. Chellis opened the meeting by asking Richard
Terpening to speak. At that point, according to Lari-
viere, he stood up and said that Chellis had improperly
reported to management that he was causing trouble
concerning the insurance and that he would like to see
better representation in the future. According to Lari-
viere, Chellis apologized and Richard Terpening pro-
ceeded with his explanation of the Company's position
on the insurance deductions. These deductions continued
weekly after the meeting according to Lariviere.
D. Election of Union Officers
The terms of the union officers were due to expire on
the first Tuesday in June 1982. In late May or early
June, Lariviere spoke to some other employees about
running on a slate for the election. Lariviere was to run
for president, Vernon Cummings for vice president, and
Ed Peenstra for secretary-treasurer. Bagley was to be
campaign manager. In early June 1982, Lariviere and
Bagley asked Chellis to hold a meeting for the election
of officers. Chellis said he would rather not have a meet-
ing until the contract expired, and Lariviere replied that
according to the bylaws the meeting was already over-
due. Although Chellis promised to get back to Lariviere,
he did not. On June 18, Lariviere again asked Chellis to
schedule a meeting, and Chellis agreed to hold an elec-
tion meeting on June 22 at the Club Room Restaurant.
Lariviere asked Chellis if he would run again, and Chel-
lis said he would. Lariviere said he was running and
stated that he felt sure of seven votes.
A few hours later, Lariviere wrote an election notice
and Bagley posted it on the company bulletin board later
that evening. Chellis testified that someone from manage-
ment asked him who posted the election notice, but
Chellis did not know who had done it. Chellis testified
that he did not tell management that Lariviere was run-
ning for a second term as president. Members of manage-
ment all maintained that in the summer of 1982 they
were unaware that Lariviere was a candidate for the
union presidency.
On June 22, Lariviere arrived at the Club Room Res-
taurant at 4:30 p.m. Later, Bagley, Kendall, Chellis,
Searle, and Muhl came in.9 About 6 p.m., Bagley asked
9 Muhl was vice president of the Union at this time.
if there was going to be a meeting, and Chellis said there
was no quorum and therefore could not be a meeting.
The men engaged in general conversation for a while.
Lariviere testified that he told Chellis he thought the
May 26 meeting had been improperly conducted since it
had closed without a vote being taken on the medical in-
surance deduction. Chellis said the Union should be dis-
solved, but Lariviere disagreed. Lariviere asked Muhl
about the distribution of tickets for the union clambake
and inquired whether unauthorized people were receiv-
ing free tickets. Before the men went home, Chellis told
them an election meeting would be held on June 25 at 5
a.m. in the drivers' room at the Company's premises.
Lariviere admitted having had 3 or 4 beers before the
scheduled hour of meeting and one or two more after
the men arrived. He was not upset that no one showed
up for the election, only surprised. Although some union
meetings become rowdy, this one did not, according to
Lariviere.
Bagley testified that at this meeting he asked why
Muhl was selling tickets to the public for the union clam-
bake. Muhl explained that nothing improper was occur-
ring and the discussion ended.
On the night of June 22, Chellis testified, Lariviere
told him that he and the other two union officers had no
backbone. Bagley interjected that they were "a bunch of
spineless company bastards." Chellis responded by saying
he "didn't need" the harassment and name calling that
had been going on for several months. Lariviere and
Bagley accused the officers of each having little deals
with management. Chellis stated that all through 1981
and 1982 Bagley had accused him of not caring about
the members or the Union and not being able to stand up
to management. Chellis testified that Lariviere was often
critical of him on the basis of his incompetency as presi-
dent and his ignorance of the bylaws and the contract.
The two men disgareed about the raising of union dues,
establishment of an arbitration fund, and deductions for
medical insurance.
According to Muhl, when he arrived at the meeting of
June 22, he was immediately called a "yellow bellied
scab" by Bagley.' 0 Bagley continued with even more
severe invective and criticized the performance of all the
union officers. Lariviere chimed in with questions about
the union picnic.
On June 22, Searle testified, he heard Bagley call
driver Harold Kendall a coward. Kendall laughed and
left the meeting. Bagley called all the men present
"spineless jellyfish." There was a discussion of union
funds and picnic tickets. Bagley told Chellis he was a
poor leader and had a yellow stripe down his back.
When Muhl appeared, Bagley said, "Here comes another
one of those fucking yellow bellied scabs."
Arthur Tickner spent about 5 minutes at the Club
Room Restaurant on June 22, 1982. Tickner testified that
he heard Bagley call Brad Searle a "spineless deal-
making asshole." Tickner left soon afterwards.
0o Muhl testified in a careful, attentive, and cooperative manner. He is
an intelligent, reasonable person and impressed me as a truthful witness
who would not readily be led by counsel I credit his testimony.
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Most of the witnesses called by Respondent Employer
testified that a lot of beer was consumed at this meeting
and that many of the men had a "buzz on."
Bagley testified that on June 22 neither he nor Lari-
viere were abusive to any of their fellow employees. He
denied saying anything to Searle and could not recall
what he said to Chellis. Bagley denied specifically call-
ing any drivers "scab," "fucking scab," "SOB," or any
similar names.
Lariviere denied calling Chellis a "deal maker," "ass
kisser," "fucking scab," "spineless son of a bitch," or any
other similar derogatory epithet. He did recall that on
another occasion he told Tickner that he did not have
the backbone to stand up to the Company on the medical
insurance issue. Tickner's response was to punch Lari-
viere and invite him outside. Neither of them was sober,
according to Lariviere. Lariviere stated that he did not
have similar conversations with any other employees.
Lariviere testified that none of his fellow workers had
ever told him to stop harassing them and that he had
never been warned about harassment by the Company.
Lariviere denied raising his voice at union meetings.
The testimony of the witnesses about his meeting leads
me to conclude that it was rowdy, that considerable beer
was consumed, and that a lot of harsh language was em-
ployed by all, including Bagley and Lariviere. ' My ob-
servation of the witnesses as they gave testimony con-
cerning the meeting of June 22 convinces me that all of
them had some recollection of the events. The other
drivers were understandably upset by Lariviere's and
Bagley's complaints and thus had a natural tendency to
exaggerate their indignation at the language in which the
criticism was expressed, while Lariviere and Bagley
were understandably reluctant to recall that they had
used strong language to the union officers. Having con-
sidered the above, I find that the testimony of Chellis,
Muhl, Searle, and Tickner concerning the meeting of
June 22, 1982, is substantially correct.
E. Gathering of June 23, 1982
On June 23, Richard Terpening testified, he heard the
men complain about name calling at the meeting the
night before. Muhl and Chellis said, "It's enough to
make you go look for another job," and Harold Kendall
said he had applied for another job. Tickner said he
could not stand it anymore and, "fuck this place. I have
had it." Tickner mentioned being harassed at the diner,
the loading rack, and the Club Room Restaurant. Several
drivers said the Union should be disbanded. Up to this
time, Terpening had only known about some personal
conflicts among the men, not any generalized trouble.
According to Stiles, he was talking to Chellis, Searle,
and Thompson on June 23, when Chellis brought up the
problem with Lariviere and Bagley. He said he was tired
of being called a "yellow bellied scab" at the loading
dock. Then, Searle said he was often called a "fucking
spineless jelly fish." The two men told Stiles that they
i This was not an uncommon occurrence. Chellis testified that rough
shop talk was common at the Company although it was "jocular" in
tone. Frequently used terms were "son of a bitch," "bastard," and "sack
of shit."
had been called these names at a union meeting on June
22 and that the name calling had gone over a period of
time. Muhl came in and said he objected to being called
these names in front of strangers. Other drivers appeared
and pretty soon all were talking about their problems
with Lariviere and Bagley. Then Charles and Richard
Terpening came in and joined the conversation. Muhl
told Stiles that he had gotten so angry on occasion that
he had serious thoughts about working at Terpening.
There was talk of disbanding the Union.
Chellis, Tickner, Muhl, and Searle all testified, in sub-
stance, that at the impromptu gathering on June 23,
1982, they made known their complaints about Bagley
and Lariviere to members of management. Their testimo-
ny shows that: Kendall told the assemblage that he could
not take any more "shit" and that he had applied for
other jobs because he "couldn't even stop for a beer
without getting his ear bent by Bagley and Lariviere";
Tickner said he was taking his problems home and get-
ting an ulcer; Searle said he "did not like two individuals
destroying great working conditions for the majority of
us"; Muhl said, "I don't like being called a fucking
yellow bellied scab" and said he did not like being called
obscene names in front of strangers at the Club Room;
Searle said the union officers had been called "a bunch
of spineless bastards"; and Chellis said he was fed up and
thinking of getting another job. In addition, Kendall and
Tickner mentioned the possibility of taking a vote to dis-
band the Union. The two agreed that there was no
peace, only never-ending "bullshit and aggravation," and
that there was "no satisfying Howard and Gene."
Tickner told Richard Terpening that the only solution
was to disband the Union so that Bagley and Lariviere
would have to take up their problems with Terpening
personally and not through their fellow workers. Ter-
pening replied that he felt the Union should disband.
When Tickner suggested that Government approval
would be required to accomplish this end, Terpening re-
plied that the men only needed to take a vote.
F. Discharge of Bagley and Lariviere
Richard Terpening testified that following the gather-
ing on June 23, 1982, he was very upset about the low
morale of the men. He decided that Lariviere cared only
about himself, not the Company. Terpening concluded
that the problems were responsible for neglect on the job
because the pressure was resulting in mistakes by the
drivers.12 The next morning, having decided that he
must fire the the two men, Terpening discussed the situa-
tion with his brothers and Stiles. He told Stiles that he
was upset about the low level of morale among the driv-
ers and that he was concerned that men with long years
of service felt that they wanted to leave. All three of the
managers expressed surprise "that this had gone this far."
Stiles was particularly upset that a calm, quiet person
like Muhl would think of going elsewhere, and he was
concerned that without good drivers the Company could
not offer anything to its customers.
lZ Terpening did not describe any specific mistakes related to specific
incidents involving Bagley and Lariviere.
100
TERPENING TRUCKING CO.
Richard Terpening instructed Stiles to inform Bagley
and Lariviere of his decision to discharge them. Then he
wrote out letters of termination.
According to Stiles, he notified Lariviere by telephone
that he was fired. When the latter inquired about the
reason for his termination, Stiles said it was for harass-
ment of his fellow employees and misconduct. Stiles did
not give him any other reason but referred him to the
letter which Lariviere could pick up when he came to
clean out his locker later in the day.
According to Lariviere, he spoke to Richard Terpen-
ing about one-half hour after receiving Stiles' phone call.
When Lariviere asked for an explanation of his dis-
charge, Terpening replied:
Apparently, Gene, you have never understood how
this Association operated. You haven't had your
hand on the pulse of the membership. You have
riled these guys up, you are trying to force them
into a union election that they don't want. You are
just a problem. I don't know if it is you; I don't
know whether it is you or Howard or both, or if he
is leading you down the primrose lane or if it is the
other way around, but I am going to get rid of both
of you and that will solve my problem.
Terpening continued that he had a bull session with a
couple of drivers that night before and heard complaints
concerning Lariviere and Howard and that he just could
not take the strain any more. He mentioned that he could
not take the union talk at the bar. He said, "I want to
just cut this clean with you. I will give you a good rec-
ommendation. Your work has been good. I have no
problems concerning your work." At that point Lari-
viere asked to present his side of the story. Terpening
said, "No, I don't want to talk about it." Lariviere then
asked about the arbitration procedure. Terpening replied,
"There will not be any arbitration." Lariviere said, "I
understand that it is up to the Association." Terpening
responded, "You have never understood that I run the
Association." At that point Lariviere said that he would
like to attend the scheduled union meeting and Terpen-
ing stated, "Gene, you can come down here and pick up
whatever pay you have got coming and any personal
items you have got. You can do that today. But after
today, I do not want you on my property. If you come
on my property I will have you arrested." Then he said
goodbye.
Lariviere's affidavit, given July 13, 1982, a few days
after his termination, does not state that Richard Terpen-
ing said, "I run the Association." Nor does the affidavit
state that Terpening said anything about Bagley in con-
nection with a primrose path nor that Terpening was
getting rid of both of them. Lariviere stated that this dis-
crepancy was due to the shorter time he spent with the
investigator giving the affidavit compared to the longer
time he spent with counsel preparing for the trial of the
instant case. He did not correct the information in his
first affidavit when he met with a Board investigator to
give a second affidavit because he believed he would dis-
cuss the details with a trial attorney later.
Richard Terpening denied Lariviere's version of this
telephone conversation. Stiles, who testified that he over-
heard Terpening read the letter to Lariviere over the
telephone, testified that he did not hear Terpening men-
tion Bagley and a primrose path nor did he hear Terpen-
ing say, "I run the Association."
According to Bagley, he was at work on June 24
when he received his discharge letter from Stiles. Bagley
then spoke to Richard Terpening, who told him that his
attitude and his harassment of other employees had led
to his discharge. Terpening said that Bagley's fellow em-
ployees had complained about Bagley but he refused to
indentify any of these employees by name. According to
Bagley, Terpening said that Bagley was pushing drivers
into things they did not want due to his strong attitude
about the contract. Richard Terpening said that if he
fired both Bagley and Lariviere "then my problems are
over." In response to a leading question, Bagley recalled
that Terpening said he "was pushing the Union to the
point where I wanted everything in writing."
Stiles testified that he gave Bagley his letter of termi-
nation in Richard Terpening's presence. Bagley said he
was "guilty by association" but Terpening replied that it
was not so and that "you've done your part in this."
Soon after this Bagley left. Stiles testified that Terpening
did not mention the Union or Bagley's union activities
during this conversation. Although Stiles denied it, his
affidavit says that Richard Terpening told Bagley that he
did not know if "Gene was speaking through Bagley or
Bagley was speaking through Gene."
Bagley's affidavits do not refer at all to most of the
events he discussed in his testimony. Among these are
Terpening's mention of union activity when he was ter-
minated, including Bagley's pushing the drivers and Ter-
pening's ending all of his problems and insisting on
having everything in writing. Richard Terpening denied
Bagley's version of their last conversation.
Bagley and Lariviere received identical letters on June
24, 1982, stating:
It is the opinion of this company that you no
longer wish to work here, and we will oblige you.
We have witnesses a long standing [sic] feud that
has increasingly brought more and more harassment
by you upon your peers. It has now reached the
point where the low moral [sic] has been pulling at
the guts of your fellow employees and is beginning
to affect everyone's attitude and working ability.
This misconduct by you against the people you
working with can no longer be tolerated. When we
have people who no longer wish to get up in the
morning to come to their job because of you,
changes have to be made for the sake of the compa-
ny and it's [sic] employees who are happy and like
their jobs.
I am sorry that it has come down to this but we
have no other choice. For your piece [sic] of mind,
our employee's [sic] and ours the decision is that
you would be much happier working for others.
Therefore we are relieving you of your duties ef-
fective this date of June 24, 1982.
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on my observation that Richard Terpening
showed a reluctance to recall instances of Lariviere's
militancy over intraunion matters and, based on the fact
that other testimony shows that the Terpenings and
Stiles knew the details of union affairs, that Charles,
Richard, and George Terpening asked the drivers about
union activities, and that Charles Terpening warned Lar-
iviere to stay away from Bagley who was talking too
much, I find Lariviere's and Bagley's versions of their
termination interviews plausible and reliable. As dis-
cussed below, more detailed findings are not necessary.
It is of no moment whether Richard Terpening actual-
ly mentioned union activity in his conversations with
Bagley and Lariviere nor whether he referred to specific
conflicts over the administration or wording of the col-
lective-bargaining agreement. No matter what language
was actually employed, the fact remains that Terpening
knew the drivers were complaining of being harassed
about intraunion conflicts and he discharged Lariviere
and Bagley because of this harassment.
The testimony outlined above and the letter of dis-
charge show clearly that Richard Terpening had been
aware of problems among the men before June 23, 1982.
On that day, however, he was given a detailed descrip-
tion of the harsh disagreements existing among the driv-
ers about union affairs. He was told that the long-sim-
mering problem had come to a boil the night before, and
that the men were sick of name calling and criticism of
their handling of the Union by Bagley and Lariviere, and
he was made aware that some of the men wished to dis-
band the Union. There was also talk by some of the driv-
ers present that they were thinking of looking for other
jobs. 13
Terpening's reaction was to fire Bagley and Lariviere.
His testimony makes it clear that he knew he was firing
the two dissidents because they were harassing and criti-
cizing their fellow workers as a result of disagreements
over how the Union was run and the role of the Union
vis-a-vis the Employer.
I am construed to find that these discharges were in
violation of Section 8(a)(3) and (1) of the Act14 Further,
I find that the actions of Lariviere and Bagley did not
lose the protection of the Act as is contended by the
Employer.
In the instant case, the evidence does not show that
Lariviere or Bagley interfered either with the work of
fellow employees or with the functioning of the Employ-
er's business. s The chief source of their fellow employ-
ees' complaints, and the foundation of the testimony at
the trial, was the conduct of Bagley and Lariviere at
union meetings and especially at the meeting of June 22.
's Terpening's letter does not say that any driver had actually threat-
ened to quit; it says that people no longer wished to get up and go to
work. Because the letter was written when the drivers' comments were
still fresh in Terpening's mind, I shall give more weight to the statements
referred to therein than to testimony at the trial about what was said on
May 23, 1982. Therefore, I find that no employee actually threatened to
quit. If he heard a threat to resign, Terpening would surely have men-
tioned in it in his letter.
"4 Tracy Towing Line, 166 NLRB 81 (1967); Star Expansion Industries,
164 NLRB 563 (1967); London Chop House, Inc., 264 NLRB 638 (1982).
15 Salt River Valley Water Users' Assn. v. NLRB, 206 F.2d 325, 329 (9th
Cir. 1953).
It is clear that the conflict and name calling described by
all of the witnesses took place in the context of discus-
sions of union business. The subjects of Bagley's and
Lariviere's complaints dealt with matters of legitimate
concern to the employees in the context of union busi-
ness-medical insurance deductions, union picnic ticket
sales, negotiation of new contracts, election of officers,
and the like. Bagley and Lariviere wanted the Union and
their fellow employees to be more forceful in pressing
union demands to the Employer, and they sought to
change the character of the organization. Both men
wanted the Union to adopt a more adversary and less
compliant attitude toward the Employer.
Although their fellow employees complained bitterly
over Bagley's and Lariviere's actions, it is the rule that
conflict and controversy, however unsettling or unpleas-
ant, must be tolerated in a union context so long as the
concerns expressed by the dissidents are legitimately re-
lated to union business and are expressed in a proper set-
ting. Of course, there cannot be a setting more appropri-
ate than a union meeting.
Moreover, not all of their coworkers complained
about Lariviere and Bagley; only 5 of the 15 drivers
voiced complaints to management. It is clear that man-
agement precipitously terminated the two dissidents after
receiving complaints from union leadership without any
warning or attempt to achieve correction by the two
men.
The conduct complained of here did not take place,
for the most part, during working hours and at a work
location. Except for some nonspecific references to the
effect that drivers were harassed at a loading dock, all
the conflict took place during union meetings. At those
meetings Lariviere and Bagley were lawfully engaged in
attempting to change the direction and methods of the
Union. While their language was not polite, it appears
that the language of the other drivers was not overly
nice. Further, meetings at the Club Room involved the
generous consumption of beer. My observations during
the instant trial make it clear that most of the drivers
casually interject strong words in their everyday talk,
even on occasion doing so unconsciously while giving
testimony under oath. Further, a certain vernacular
leeway is permitted in the context of heated exchanges
related to labor matters.
There is no evidence that Bagley's or Lariviere's con-
duct actually interefered with management's ability to
direct the work of the employees and to have its prod-
ucts delivered properly. 16
As to the claim that some drivers were looking for
other work, I do not find the testimony on this point
persuasive. No testimony was presented to show where
and when drivers had applied for other jobs, no ultima-
tum or specific threat to quit was cited in the testimony,
and Richard Terpening's letter only referred to the fact
that drivers did not feel like coming to work.
1' Cf. Didde-Glaser, Inc., 233 NLRB 765, 769-770 (1977); Master Dy-
namics Corp., 180 NLRB 802 (1970).
102
TERPENING TRUCKING CO.
G. Post Discharge Events
The contract between the Employer and the Union
provides: 1'7
Section VI
2. If the Corporation desires to discharge a driver
for cause, it shall first advise the Barn Steward of
the Union and the reasons for the discharge for
cause set forth and an opportunity be given to the
driver to hear and explain the charges made by the
Corporation against him as the cause for his dis-
charge.
4. The Corporation must give to any driver who
it seeks to discharge for cause not less than one
week's notice of its intention so to do.
Section VII
1. If the Corporation and the Barn Steward of
the Union cannot reach a unanimous agreement on
any dispute including disputes of the discharge of
driver, the dispute shall be referred to the entire
membership of the Union, inclusive of the driver or
drivers involved in the dispute. If the Corporation
and two-thirds of the membership of the Union
cannot thereupon agree upon a settlement to such
dispute, the Union and the Corporation shall each
designate two persons to act as a Board of Arbitra-
tion. The four members of the Board so selected
shall nominate and select a fifth person in any
manner unanimously agreed upon by them. The dis-
pute shall be submitted to the five arbitrators within
ten (10) days after their selection and a decision by
a majority of the five upon any dispute shall be
bonding [sic] upon the Union and the Corporation.
Chellis testified that he heard about the two discharges
late on the day they occurred. He was surprised and "re-
lieved." Chellis believed that Lariviere and Bagley had
"over exerted themselves upon the membership of the
Association with chronic, continuing ongoing harassment
on numerous occasions in numerous places, and on nu-
merous subjects. There was no end." He was relieved be-
cause he "hoped that all the bullshit would be over
with." His surprise over the discharges arose from the
fact that he thought management had only learned the
day before how deep the internal problems of the Union
were.
At the union meeting on May 25, 1982, the members
discussed the discharges of Bagley and Lariviere. s Ac-
cording to Muhl and Tickner, Chellis asked the member-
ship if the Union should seek arbitration on behalf of the
two men. Those who spoke at the meeting all believed
that the discharges were for just cause due to the behav-
" In practice, all references to the "Barn Steward" are treated as re-
ferring to the union president.
ia Lariviere claimed to have left a note for Chellis requesting that the
union meeting scheduled for June 25 be held off the Employer's premises
so that he could attend it, but Chellis testified that he never found the
note.
ior of Lariviere and Bagley and because Bagley had an
attendance problem and Lariviere had a record of spills
and contamination. The consensus of the meeting was
that Bagley and Lariviere deserved to be fired; no one
present favored filing a grievance or seeking arbitra-
tion.1 9 No vote was taken at this meeting, but it was
common practice to decide union business without a
formal vote.
A few days after his discharge, according to Lariviere,
he called Chellis at home and asked about arbitration of
his discharge.20 Chellis said he did not have a copy of
the bylaws at home and that he would call back. On a
Saturday in July, either July 3 or July 10, Lariviere
again called Chellis and asked what he was doing about
arbitration. Chellis replied that he had checked the
bylaws and the contract. He informed Lariviere that the
contract provided that if Chellis and management agreed
on the discharge there would be no arbitration. Chellis
stated that he agreed with management 100 percent and
that there would be no arbitration. No grievances was
ever filed on behalf of Bagley or Lariviere.
Lariviere did not ask Chellis to present the question of
proceeding to arbitration to the membership nor did he
request permission to attend a union meeting and present
his position to the membership.
According to Chellis, when Lariviere called him, he
asked Chellis what happened at the meeting of June 25.
Chellis reported that the officers had been reelected and
that there had been some discussion of the two dis-
charges. No vote was taken; however, the consensus of
the members was that it was too bad the two had lost
their jobs but that they had "brought it on themselves."
Lariviere called again, Chellis testified, and asked what
Chellis was doing about getting the two men reinstated.
Chellis replied, "Nothing," and referred Lariviere to the
contract.
There is a conflict in the testimony of Chellis and Lar-
iviere whether Lariviere merely asked what was being
done about the two discharges or whether he actually
demanded arbitration. It is unnecessary to resolve this
conflict because it is clear from the testimony of Muhl
and Tickner that the union members understood at the
meeting of June 25 that they were being asked whether
to arbitrate the discharges. Thus, Chellis clearly knew
that Lariviere and Bagley wanted the Union to seek arbi-
tration in their behalf.
No grievance was filed by the Union on behalf of Lar-
iviere and Bagley. It is undisputed that the notice provi-
sions of section VI, quoted above, were not complied
with by the Employer and that the Union never sought
to enforce that section. Chellis never discussed Lari-
viere's request for arbitration with management. He testi-
fied that in his view there was compliance with para-
graph I of section VII of the contract in that the Com-
pany and the union president agreed that the discharges
of Bagley and Lariviere were proper.
19 Since 1978 four drivers have been discharged. No grievance was
ever filed as a result of these actions.
20 Lariviere testified that he told Chellis he was calling for himself and
for Howard Bagley.
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 11, 1982, after the charge against the
Union herein had been filed, Chellis wrote to Lariviere
that "Ji]f you so desire at this time, the Association will
proceed, under the terms of our contract, towards arbi-
tration of your case." Chellis' letter was written on com-
pany stationery and the envelope was stamped with the
company postage meter.
Lariviere replied on August 16, expressing his doubts
as to the assistance being given to the Union by the Em-
ployer and stating that, in view of the "questionable
motive and the timing" of the Union's offer, he had de-
cided to consult with a representative of the Board.
Later in August, Lariviere again wrote to Chellis point-
ing out that the Union had not agreed to a settlement
proposed by the Board, that the Company may have
aided the Union in preparing the offer to arbitrate, and
that "a sincere effort to comply with the terms of the
contract would have included a similar offer to Howard
Bagley." 2 1 The letter closed by saying, "I would be
more than willing to listen to any argument you may
wish to present that would convince me that your offer
.... is in the best interest of the union membership and
myself." There was apparently no reply to this letter.
Lariviere clearly asked Union President Chellis to do
something for him and Bagley. That it was plain to Chel-
lis that Lariviere wanted the Union to seek arbitration is
clear from the fact that Chellis posed the question to the
union members on June 25. The membership understood
that it was being asked whether the Union should take
some action in behalf of Lariviere and Bagley with a
view to arbitrating their discharges. The Union decided
not to take any action because the members agreed with
the Employer that the discharges were well deserved.
Thus, the Union did not seek to enforce the provisions of
the contract providing for notice of intent to discharge
and for arbitration of grievances. The Union's letter of
August 11, 1982, cannot be viewed as a good-faith offer
to proceed with contract remedies; written on the Com-
pany's letterhead and stamped on the Company's postage
meter machine it hardly inspires confidence that the
Union is prepared to represent the two employees fairly
in an adversary proceeding against the Company. Fur-
ther, the testimony and demeanor of the union officers at
the trial herein was consistent on the point that Bagley
and Lariviere were terminated for just cause and that the
Union was correct in not pursuing a grievance on their
behalf. I find that the Union failed to enforce the con-
tract, failed to file a grievance, and failed to seek arbitra-
tion in violation of Section 8(b)(1)(A) for the reason that
Bagley and Lariviere engaged in intraunion protected ac-
tivities which aroused the hostility of the union leader-
ship.22
H. Dues Deductions
The parties stipulated that the only dues-deduction au-
thorization forms executed by the Company's employees
were dated, variously, October 5, 6, and 15 and Decem-
ber 21 and 28, 1982. There is no dispute that Respond-
ent's collective-bargaining agreement which provides for
' The date of this letter is illegible.
" Sargent Electric Co., 209 NLRB 630, 638 (1974).
the automatic deduction of union dues from the weekl3
wages of employees has been enforced by Respondent,
for the terms of the contract from August 3, 1981, tc
August 1, 1982.23 Respondents contend that the lan-
guage of the collective-bargaining agreement is the legal
equivalent of a checkoff authorization under the circum-
stances of this case. Section V, paragraph 3, of the con-
tract provides:
Each new employee shall become a member of the
Union and his dues shall become payable at the ter-
mination of six months employment by the Corpo-
ration .... If a driver is still employed after the
six month period, the Company will automatically
deduct the rate of $3.00 from his weekly wages to
cover union dues.
The Board has held that even where a valid union-se-
curity provision obligates employees to pay dues to the
Union the employees must sign checkoff authorization
cards. Therefore, I find that Respondent Employer vio-
lated Section 8(a)(1) and (2) of the Act and that Re-
spondent Union violated Section 8(b)(l)(A) of the Act.
American Geriatric Enterprises, 235 NLRB 1532 (1978).
CONCLUSIONS OF LAW
1. Terpening Trucking Co., Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Terpening Drivers Association is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By coercively interrogating its employees, Respond-
ent Employer violated Section 8(a)(1) of the Act.
4. By discriminatorily discharging its employees Gene
R. Lariviere and Howard Bagley, Respondent Employer
violated Section 8(a)(3) and (1) of the Act.
5. By deducting from the wages of its employees
amounts equal to union dues without prior written au-
thorization by the employees, Respondent Employer vio-
lated Section 8(a)(1) of the Act.
6. By remitting the aforesaid sums deducted from its
employees' wages to Respondent Union, Respondent
Employer violated Section 8(a)(2) of the Act.
7. By accepting from Respondent Employer and re-
taining the aforesaid sums representing union dues de-
ducted from the employees' pay without prior written
authorization, Respondent Union violated Section
8(b)(l)(A) of the Act.
8. By invidiously failing to represent in good faith
Gene R. Lariviere and Howard Bagley in enforcing the
collective-bargaining agreement and seeking arbitration
of their discharges, Respondent Union violated Section
8(b)(1)(A) of the Act.
9. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they
:3 The complaint alleges a violation beginning on February 10, 1982.
104
TERPENING TRUCKING CO.
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent Employer unlawfully dis-
charged its employees Gene R. Lariviere and Howard
Bagley and that Respondent Union unlawfully failed to
represent them, I shall recommend that Respondent Em-
ployer reinstate them to their former positions or, if no
longer available, to substantially equivalent positions,
without prejudice to their seniority and other rights and
privileges and expunge from its files any reference to the
discharges of Gene R. Lariviere and Howard Bagley on
June 24, 1982, and notify them in writing that this has
been done and that evidence of these unlawful discharges
will not be used as a basis for future personnel actions
against them; and I shall not recommend that Respond-
ents jointly and severally make whole Gene R. Lariviere
and Howard Bagley for any loss of pay they may have
suffered as a result of discrimination against them, less in-
terim earnings, if any. The backpay shall be computed in
the manner set forth in F. W Woolworth Co., 90 NLRB
289 (1950), with interest to be computed in the manner
described in Florida Steel Corp., 231 NLRB 651 (1977).24
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed25
ORDER
A. Respondent Terpening Trucking Co., Inc., Syra-
cuse, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating any employee about his
intraunion activities.
(b) Discharging or otherwise discriminating against
any employee to discourage him from engaging in in-
traunion activities.
(c) Assisting Terpening Drivers Association by de-
ducting from the wages of its employees amounts equal
to union dues and remitting these amounts to the Asso-
ciation when such deductions are not sanctioned by its
employees through checkoff authorizations.
(d) 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) Offer Gene R. Lariviere and Howard Bagley full
reinstatement to their former positions, dismissing, if nec-
essary, employees subsequently hired to replace them,
and, if such former positions do not exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges.
(b) Jointly and severally with Respondent Union make
whole Gene R. Lariviere and Howard Bagley for any
loss of earnings they may have suffered as a result of
s' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
'6 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.
their discriminatory discharges in the manner set forth in
the remedy section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its shop copies of the attached notice
marked "Appendix A."2 6 Copies of the notice, on forms
provided by the Regional Director for Region 3, after
being signed by Respondent Employer's authorized rep-
resentative, shall be posted by Respondent Employer im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent Employer to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Employer has taken to comply.
B. Respondent Terpening Drivers Association, Syra-
cuse, New York, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Invidiously failing to represent in good faith em-
ployees in enforcing the collective-bargaining agreement
and seeking arbitration of their grievances.
(b) Accepting and retaining sums in amounts equal to
union dues which have been deducted from the pay of
employees of Terpening Trucking Co., Inc. without their
prior written authorization.
(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) Jointly and severally with Respondent Employer
make whole Gene R. Lariviere and Howard Bagely for
any loss of earnings they may have suffered as a result of
their discriminatory discharges in the manner set forth in
the remedy section of this decision.
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix B." Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by Respondent's author-
ized representative, shall be posted by Respondent Union
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent Union to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Deliver to the Regional Director signed copies of
the notice for posting by Terpening Trucking Co., Inc.,
25 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if it be willing, at places where notices to Terpening's
employees are customarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
Union has taken to comply.
APPENDIX A
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 representa-
tives of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminate against our employees for
engaging in activities on behalf of the Union.
WE WILL NOT assist Terpening Drivers Association by
deducting from the wages of our employees amounts
equal to union dues and remitting these amounts to the
Union when such deductions have not been sanctioned
by our employees through written checkoff authoriza-
tions.
WE WILL NOT question our employees concerning
their intraunion activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Gene R. Lariviere and Howard Bagley
immediate and full reinstatement to their former jobs or,
if those jobs are no longer available, to substantially
equivalent jobs, without prejudice to any seniority or
other rights and privileges previously enjoyed by them.
WE WILL expunge from our files any reference to the
disciplinary discharges of Gene R. Lariviere and
Howard Bagley on June 24, 1982, and WE WILL notify
them that this has been done and that evidence of these
unlawful discharges will not be used as a basis for future
personnel actions against them.
WE WILL, jointly and severally with Terpening Driv-
ers Association, make Gene R. Lariviere and Howard
Bagley whole for any loss of earnings they may have
suffered as a result of their unlawful discharges.
TERPENING TRUCKING CO., INC.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
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 representa-
tives of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discriminate in our representation of
any employee because he engaged in intraunion activi-
ties.
WE WILL NOT accept or retain any amounts remitted
to us by Terpening Trucking Co., Inc., which have been
deducted from employees' wages without their prior
written authorization.
WE WILL not in any like or related manner restrain or
coerce our employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
TERPENING DRIVERS ASSOCIATION
106