The Lynn Pacific Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1970

187 N.L.R.B. 589 (N.L.R.B. 1970)

THE LYNN PACIFIC CORP.
The Lynn Pacific Corporation and Line Drivers Local
Union No. 468, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America and The Lynn Pacific Corporation
Employees ' Committee, Party to the Contract. Case
20-CA-5787
December 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 2, 1970, Trial Examiner Eugene K.
Kennedy issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
limited exceptions and a reply 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 case 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, the briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, as modified below.
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
Respondent, The Lynn Pacific Corporation, Union
City, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Insert the following as paragraph 1(e) of the
Recommended Order, and reletter the following
paragraphs accordingly:
"(e) Giving effect to, performing, or in any way
enforcing its contract, or any modifications, exten-
sions, or renewals thereof, or any other contract,
agreement, arrangement, or understanding entered
into with Lynn Drivers Association, or any successor,
relating to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of
589
employment; provided, however, that nothing in this
Decision shall be construed to require the Respondent
to vary or abandon any wages , hours, seniority, or
other substantive feature of its relations with its
employees which the Respondent has established in
the performance of said contract, or to prejudice the
assertion by employees of any rights they may have
thereunder."
2. Substitute the following as paragraph 2(a):
"(a) Offer to Ron Gewecke, Floyd Alexander,
Lonnie Hadden, and John Freitas immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, and
make them whole for any loss of pay they may have
suffered by reason of the discrimination against them,
in the manner set forth in the section of this Decision
entitled `The Remedy.' "
3. In footnote 24 of the Trial Examiner's Decision
substitute "20" for "10" days.
4. Substitute the attached notice for the Trial
Examiner's notice.
These findings are based , in part, upon credibility determinations of
the Trial Examiner to which the Respondent has constructively excepted
After careful review of the record, we conclude that these credibility
findings are not contrary to the clear preponderance of all the relevant
evidence Accordingly, we find no basis for disturbing these findings
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A.
3)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Line
Drivers Local Union No. 468 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, or any other
labor organization, by discharging employees or
demoting or reducing the pay of employees, or
modifying the seniority list because of their
activities on behalf of the Union, or by discrimi-
nating against employees in any other manner in
regard to hire or tenure of employment or any
terms or conditions of employment , or by recog-
nizing the Lynn Pacific Drivers Association.
WE WILL NOT threaten employees with loss of
employment or benefits because of their support
of the Union or any other labor organization.
WE WILL NOT promise benefits or give benefits
to employees because of their refusal to support
the Union or any other labor organization.
WE WILL NOT interrogate our employees with
respect to their union activities or the union
activities of other employees.
WE WILL NOT enforce or give effect to our
187 NLRB No. 66
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement with Lynn Driv-
ers Association or to any extension, renewal,
modification, or supplement thereof, or to any
superseding agreement, but we are not required to
vary or abandon any wages, hours, seniority, or
other substantive features established in the
performance of the contract, and our employees
may still assert any rights they may have under the
contract.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in their rights to
self-organization or collective bargaining.
WE WILL offer Ron Gewecke, Floyd Alexander,
Lonnie Hadden, and John Freitas immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or
other rights and privileges, and WE WILL make
them whole for any loss of pay they may have
suffered by reason of the discrimination against
them.
WE HEREBY withdraw recognition from the
Lynn Pacific Drivers Association.
THE LYNN PACIFIC
CORPORATION
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
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, 450 Golden Gate Avenue, Box 36047, San
Francisco, California 94102, Telephone 415-
556-5017.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: This case was
heard in San Francisco, California, on April 14 and 15,
1970.1 The complaint alleges various acts of restraint and
interference on the part of Respondent together with the
I The initial charge was filed on October 13, 1969, and an amended
charge was filed on December 8, 1969 The complaint was issued on
alleged discriminatory discharge of four employees under
varying circumstances, all in violation of the National
Labor Relations Act, as amended, herein the Act.
Upon the entire record in the case and the briefs filed by
the parties, and my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE
JURISDICTION OF THE BOARD
Lynn Pacific Corporation, herein Respondent, a Califor-
nia corporation with a place of business in Union City,
California, is, and at all times material has been, engaged in
the manufacture, warehousing, and sale of school supplies.
Respondent annually transports from Washington and
Oregon into the State of Calforma products valued in
excess of $50,000 per year. Respondent is, and at all times
material herein has been, an employer engaged in
commerce and in operations affecting commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Line Drivers Local Union No. 468, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, herein the Union, or Teamsters Union,
is a labor organization within the meaning of the Act.
The Lynn Pacific Drivers Association is, and at all times
material herein has been, a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
I The Issues
There are numerous incidents claimed by the General
Counsel to be violations of the Act. Included are acts of
interference and restraint and the discharge of four
employees, who were truckdrivers for Respondent. The
principal area of dispute concerns the reasons for the
termination of these four men. They were discharged on
different dates and allegedly for different reasons.
With respect to the alleged unlawful interferences with
employees' rights protected by the Act, a substantial
amount of the evidence is undisputed. Included are
promises of benefits, threats of loss of jobs depending on
the outcome of an NLRB election as well as encouragement
and assistance in forming the Lynn Pacific Drivers
Association, an employees' association as a rival to the
Charging Union.
Respondent contends that since the amended charge was
filed more than 6 months after the discharge of two of the
drivers, that the question of their discharge is barred by the
6-month limitation period in Section 10(b) of the Act. In
opposition to this the General Counsel argues that this is a
typical case of a charge relating back, since the initial
charge recited that the Respondent was being accused of
violating Section 8(a)(3) of the Act, and, further, that the
original charge recited that Respondent had modified the
December 24, 1969
THE LYNN PACIFIC CORP. 591
seniority system, and this was the device used to terminate
the two men whom Respondent claims are barred from
having their claims considered, and consequently the
amended charge merely states more definitely the contents
of the initial charge.
Respondent also contends that its offer to settle the
portions of the case, aside from the ones involving the
discharge of employees, should have been accepted and
that it was prejudicial to Respondent to be refused this
procedure. The General Counsel was agreeable on the
condition that Respondent would admit the allegations.
This Respondent refused to do. Respondent's motion at the
hearing to sever the discharge cases was denied on the basis
that the evidence would be parallel to that offered in
support of the remaining allegations of unfair labor
practices. A review of the transcript has confirmed that the
same evidence would have been admissible on the
discharges as was introduced for the balance of the
allegations in the complaint, and that Respondent was not
prejudiced by refusal of its offer to settle the balance of the
complaint. Further, Respondent's contentions that litigat-
ing the allegations, aside from the ones involving the
discharges, would entail a burden with respect to extra time
in litigation, were not well founded.
2. Background
Lynn Boomershme is the president and majority
stockholder of Respondent corporation. He acts as plant
manager, salesmanager, office manager, and makes mana-
gerial decisions. He was also instrumental in developing his
own trucking organization which is the segment of
Respondent's operation mainly involved in this proceeding.
Respondent, according to Boomershine, owns two or three
pieces of trucking equipment, and all the rest is under a 5-
year lease with no termination provisions. The significance
of this, according to Boomershine, is: "Well, once we have
committed ourselves to go into trucking in the beginning of
1967 we were in it until 1972."
Respondent's truck fleet operated in the western United
States. The trucks are used to bring raw materials to Union
City, California, and to deliver the finished products in the
form of tablets, notebooks, and similar materials. Boom-
ershme, in the course of his testimony, explained that
Respondent's business is very seasonal with the bulk of the
business between April and September. The slowest season
is the winter months of December and January.
One of the bases of dissatisfaction of Respondent's
2 This driver was Lonnie Hadden Prior to the election conducted by
the National Labor Relations Board on May 3, 1969, Boomershine gave
Hadden and two other drivers, Alexander and Gewecke, $125 Prior to this
they had never been advised by Boomershine that they would receive this
amount of money after the winter months when their workweek was
reduced The check stub which accompanied the payment of $125 to these
three drivers who were all alleged to have been discharged illegally,
contained this entry. "TO MAKE UP FOR PREVIOUS DEDUCTIONS
THANK YOU FOR YOUR HELP"
3 The president of the Union is no relation to John Freitas, one of the
alleged discrimmatees
4 Unless otherwise indicated, all dates herein are 1969.
5 Boomershine denied telling any drivers he would go out of business
This denial is not credited nor is Boomershine's testimony credited where it
conflicts with findings based on the testimony of credited witnesses
Boomershine's witness chair manner and demeanor, as well as the content
drivers grew out of an event occurring approximately in
January 1969. At this time, Boomershine instituted a system
whereby the drivers would work reduced hours. This
system resulted in at least one of the drivers working a full
week and receiving a half of a week's pay.2
Respondent had two types of drivers, one being the "line
driver" who made the long trips out of town or out of State
and usually drove diesel trucks. The other type was a "short
haul" driver or local driver who made local trips. The work
of this latter type of driver was harder and paid less,
according to Boomershine. At the time of the hearing there
was one driver classified as the local driver on the seniority
list. All four of the alleged discriminatees were line drivers.
In February or March 1969, several of the line drivers
made their first contact with the Union. The four drivers
alleged to have been discriminatorily discharged were Ron
Gewecke, Lonnie Hadden, Floyd Alexander, and John
Freitas. Hadden first contacted the Union and then in
company with Gewecke, Alexander, Freitas, and the local
driver, Don Tracy, met with Al Appelbaum, secretary-
treasurer of the Teamsters, and Ernie Freitas, president of
the Union .3 During this meeting the drivers signed union
authorization cards. Following this meeting the union
officials were unsuccessful in attempting to speak with
Boomershine in person or by telephone. After having left
his business card with Boomershine's secretary when
Appelbaum sought to contact Boomershine by telephone,
he would be asked to identify himself by a secretary and,
after so doing, would be informed Boomershine was
unavailable.
3. Unlawful Interference; Violations of Section
8(a)(1) and (2) of the Act.
Driver Gewecke saw Union Secretary-treasurer Appel-
baum and Union President Freitas in Respondent's parking
lot in mid-March of 1969.' On the following day,
Boomershine called Gewecke into his office and showed
him Union Secretary-treasurer Appelbaum's business card.
Boomershine asked Gewecke if "these" (sic) were friends of
his. Gewecke replied in the negative. Then Boomershine
told Gewecke if he were forced to go into the Teamsters
Union or sign a contract with them, that he couldn't afford
to pay the union wages and benefits for everybody
concerned and would have to sell the equipment and lay off
the drivers. Boomershine also asked Gewecke "who all"
had gone to the Union, and Gewecke did not respond.5 On
April 4, petitions for an election to be conducted by the
of his testimony, did not establish him as a careful or reliable witness
Boomershine testified he had one line driver at the time of the hearing
on April 15, 1970 Prior to Boomershine 's testimony , Respondent's counsel
at the hearing had offered Gewecke reinstatement upon the condition that
his California license was reinstated It was also mentioned that
consideration was being given to the unconditional offer of reinstatement
to the alleged discnminatees , Hadden and Alexander, prior to the close of
the hearing.
At one point in his testimony, Boomershine claimed he resented Hadden
and Alexander not coming back to work and then later testified he could
get along well with one line driver. At another point in his testimony
Boomershme also stated he expected all his drivers to remain with
Respondent; that he was disappointed they didn't ask for theirjobs back.
These testimonial twists and turns are magnified by his other statement
that he was obligated to be in the trucking business until 1972 because he
had leased the equipment with no termination provisions . Much of his
(Continued)
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board were filed by the Union
and by Respondent. On April 17, a consent-election
agreement was approved by the Acting Regional Director
of Region 20. The election was conducted on May 3, and a
certification of the results was issued by the National Labor
Relations Board on May 12.
Prior to the election Boomershine interrogated Alexander
and Hadden concerning the Union at approximately the
same time that Gewecke was asked by Boomershine as to
whether he knew Appelbaum. He showed Appelbaum's
card to Alexander and asked him if he knew him or if he
was a friend of his. Alexander told Boomershine he knew
Appelbaum but that he wasn't particularly a friend of his.
Boomershine also asked Alexander if he knew who had
gone to the Union, and Alexander responded that he did
not know everybody who had gone. About the same period,
when Mario Gonfiotti6 was present, Boomershine showed
Lonnie Hadden a union business card for Local 468, and
asked him if he knew these guys. Hadden replied that he
did. Boomershine then asked Hadden who contacted the
Union, and Hadden told him that he had done so and all
the drivers had signed pledge cards.? Boomershine replied
to Hadden that he couldn't stand to have the Union in
there, he would sell the trucks, close the place down, and
fire all the drivers. Boomershme also asked Hadden why
they went to the Union. Hadden told him it was for
insurance purposes and for the way the drivers were being
treated. Hadden also told Boomershine that Osgood, the
truck dispatcher, was giving them a bad time. Boomershine
asked Hadden if it would help if he got a new dispatcher,
and Hadden replied that it might.
On March 28, Boomershine gave Gewecke, Hadden, and
Alexander each a check for $125. The check stub carried
the notation "TO MAKE UP FOR PREVIOUS DEDUC-
TIONS.THANK YOU FOR YOURHELP." In the previous
winter the drivers had not been told they were ever going to
receive any additional money from Boomershine when they
were on a shorter week schedule and in the case of Hadden,
at least , had performed work for which they were not paid.
After the Regional Director had approved an election on
April 17, scheduled to be held on May 3, Boomershine held
testimony is marked by prolixity and inconsistencies which often appeared
calculated to create confusion rather than to lend clarity to the subjects at
hand
6 There are two memoranda in the record from Boomershine which, at
least for correspondence purposes, place Mario Gonfiotti in the same level
of the hierachy of Respondent as Earl Osgood Osgood was a dispatcher
along with other functions and was a supervisor within the meaning of the
Act. Gonfiotti was concerned, at least in part, with the mechanical
maintenance of the trucks , and, if not a supervisor , stood at least in a
responsible relationship with Boomershine This relationship of Gonfiotti
assumes significance in connection with the discharge of Gewecke allegedly
for not having a valid California driver's license
7 Russ Brown, the stepson of dispatcher Earl Osgood, had not signed a
card and had not attended the meeting with the union representative along
with the other drivers Boomershine denied Hadden had told him he had
gone to the Union as well as that the drivers had signed pledge cards, and
that he threatened to sell his trucks if the Union came in For the reasons
set forth above, Boomershine's denials are not credited
8 Osgood was the warehouse superintendent and dispatcher for
Respondent in the discussion previously mentioned that Boomershine had
with Hadden in the parking lot, Osgood was the dispatcher to whom
Boomershine referred when he asked Hadden if it would help if he got rid
of the dispatcher
a breakfast meeting on April 19, for his drivers along with a
couple of warehousemen. This was the first and last
breakfast meeting held by Respondent. Either at the
breakfast meeting or in Respondent's parking lot after the
meeting, the undenied credible evidence establishes that
Boomershine made the following statements to the drivers
including Hadden, Gewecke, Alexander, and Freitas.
Boomershine suggested it would be a good idea for the
drivers to form their own organization within the company
instead of going to the Teamsters Union.
At this time he also stated if he were forced to go through
the Teamsters Union he would have to lay off the drivers,
sell the trucks, and send the freight by common carrier.
However, if the drivers were to form their own
association, Boomershine said there would be no perma-
nent layoffs and that a rotation system would be worked
out so no one would be permanently out of work.
Boomershine also stated to Respondent's drivers that he
was sure he and the drivers could work out a health
insurance plan.
After hearing the above statements of Boomershine
about the adverse effects of having the Teamsters Union
represent them and the beneficent prospect of having their
own association, the drivers agreed to write up contract
proposals to present to Boomershine.
Within a few days, not exceeding seven, the drivers held a
meeting in which they discussed and agreed to the
formation of an employee association. Ron Gewecke was
appointed spokesman and Lonnie Hadden was appointed
alternate spokesman. A list of proposals was formulated for
presentation to Boomershine.
On the following day Gewecke presented the proposals to
Boomershine who read them and agreed to discuss them
with Earl Osgood.8 At this time Boomershine stated to
Gewecke that the drivers could probably have a better
contract by having their own organization than going
through the Teamsters Union. These comments were made
prior to the election and prior to Boomershine's receipt of
the notice of the outcome of the election. Within a few days
Gewecke's wife had typed up proposals which were
presented to Boomershine.9 Later in the same week and
The proposals read
LYNN PACIFIC DRIVERS ASSOCIATION
WAGES (LINE DRIVERS)
$30000 per week as of May I except for the last two months and
the Ist two months of each year, then no less than $250 . 00 per week
LOCAL EXPENSES
Company will pay all road expenses . food and lodging.
VACATION
One week after one year Two weeks after two years, up to 5 years,
at full pay (300 00)
SICK LEAVE
Company will allow each driver ten non-cumulative days off with
pay each year 5/1 to 4/30
LAYOFF
No driver shall be terminated without just cause , which requires
one letter for each offense or three letters for each 6 months for
termination
TIME OFF
Each driver shall have a minimum of 48 consecutive hours off
every two weeks
DISPATCH
I .Each driver shall know by 5 p in. Friday evening (sic) for a
Sunday dispatch with no alteration from original order, except in the
THE LYNN PACIFIC CORP
also prior to the National Labor Relations Board election,
Boomershine gave Gewecke his counterproposals. The
record suggests Respondent's principal counterproposal
was an offer to raise the drivers' wages from $250 to $275 a
week.
When the election was being held on May 3, dispatcher
Osgood told Union Representative Appelbaum, who was
on Respondent's premises on the parking lot, that if the
drivers voted for the Union the Company would get rid of
the equipment. Osgood also expressed confidence the
Union would lose the election because Boomershine had
met with the drivers.
On the Sunday following the election, in which the vote
was four to two against the Union, the drivers held another
meeting at which Boomershine's counterproposals were
discussed. On the weekend of May 10-11, Gewecke and
Alexander met with Boomershme and Osgood. At this
meeting, agreement was reached on the pay raise from $250
to $275 per week retroactive to May 1. Boomershme
cautioned the drivers that the negotiations were unlawful
under the NLRB rules and because of this the pay raise
would be deferred until after "final word" from the
National Labor Relations Board. Boomershine was appar-
ently awaiting the certification of results of election which
was issued on May 12.10
4. The Unlawful Discharges
Notwithstanding Boomershme's promise to avoid layoffs
among the drivers and notwithstanding the fact that
Respondent was at the beginning of its busy season, and
notwithstanding the expression of Boomershme that he
wanted to keep his "sophisticated and experienced" drivers,
John Freitas was laid off on May 23.
At this time Freitas was the lowest of the line drivers on
the seniority list. In relevant part the seniority list at that
time in descending order of seniority was as follows: Ron
Gewecke, Floyd Alexander, Lonnie Hadden, Russell
Brown, and John Freitas. This was not a written or posted
seniority list but it was operative in determining layoffs by
Boomershine, as witnessed in the case of John Freitas on
this occasion, and also generally operative in connection
with such matters as giving drivers choice of equipment. On
June 3, a revised seniority list was posted by Boomershine
as follows
event of sickness
2 -All line equipment will be hooked up and expense checks will be
ready by departure time
3 -All out of state runs shall be a two man operation
4 -No truck shall be dispatched out if assigned driver declares
mechanically unfit
TICKETS
Lynn Pacific Corp will send letters to all C H P inspection stations
to relieve drivers of any equipment violation
INSURANCE
Lynn Pacific Corp will pay the first $50 00 per employee and each
member of employees (sic) family
io The elimination of the drivers who had executed the union
authorization cards shortly thereafter prevented them from realizing any
significant benefits from the agreement executed with Boomershme, which
was but a prelude to their separation from Respondent's employ, and not a
precursor of increased employee benefits
n Freitas was first employed at Lynn Pacific on May 12, 1967, and
worked until May 15, 1968 He was laid off by Osgood's predecessor until
SENIORITY LIST
LINE DRIVERS
RON GEWECKE March 4, 1967
JOHN FREITAS May 12, 1967
ROGER MONROE August 2, 1967
RUSS BROWN September 8, 1967
FLOYD ALEXANDER February 13, 1968
SONNY HADDEN May 4, 1968
LOCAL DRIVERS
DON TRACY
593
The significant change in the new seniority list insofar as
the issues here are concerned was to put John Freitas and
Russ Brown ahead of Floyd Alexander and Lonnie
Hadden, two of the drivers more likely to have been
regarded by Boomershine as the union "instigators."
The events leading to the revised seniority list com-
menced with the layoff of John Freitas on May 23.
Boomershine had received a certification of the results of
the NLRB election on or about May 12. Within a short time
after his layoff on May 23, Freitas came to see Boomersh-
me. Freitas was incensed that Boomershine should have
instituted layoffs after he had given the drivers reason to
believe that voting against the Teamsters would avoid any
layoffs. Freitas also claimed that his seniority status should
be immediately below that of Gewecke.1'
Boomershine seized on the claim of Freitas that his
seniority should not be affected by the period he did not
work in 1968 in order to manipulate the seniority list. He
told Freitas that an alteration in the seniority list would give
him a chance to get rid of the union "instigators."
Boomershine also requested and received a promise from
Freitas that the conversation would go no further.
Boomershine then wrote a letter which Freitas copied and
which was addressed to Boomershine ostensibly in support
of Freitas' claim that his seniority should be revised.12 In
his testimony Boomershine also claimed that Russell
Brown made his complaint about seniority before Freitas
did. Whether or not this is correct is open to question, but
in any event Boomershine put Brown on the line drivers'
seniority list ahead of Hadden or Alexander even though
July 22, 1968, when he was rehired and worked until May 23, 1969. He was
reinstated on June 9, 1969, and worked until August 22, 1969, when he was
terminated allegedly for his union association
12 The letter which Boomershme wrote for Freitas is as follows
Mr Lynn Boomershme
Lynn Pacific Corporation
This is a complaint against you, and the Lynn Pacific Corporation
You have laid me off because you have stated, I am at the bottom of
the seniority list
I was fired from my job without good reason and should have not lost
my seniority rights The records show that I came to work May 15,
1967 1 should have my seniority based on this date
Ken Lopez was not justified in firing me It was without just cause,
based on his personal grudge against me
As a loyal employee. I demand that you reinstate me on the payroll in
my Proper Position as number 2 Driver
Sincerely.
John Freitas
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown had been a local driver at the time Alexander and
Brown were in the employ of Respondent as line drivers.13
Having rearranged the seniority schedule, Boomershine
then addressed himself to the elimination of the union
"instigators" Gewecke, Alexander, and Hadden.
The complaint as amended alleges that Hadden was
discharged on or about June 1 and that Alexander was
constructively discharged on or about the same date.
Gewecke was discharged on or about June 13, and Freitas
was discharged on or about August 22.
The last man on the revised seniority list was Lonnie
Hadden. Hadden was the driver who had admitted to
Boomershine that he had originally contacted the Union.
This in all likelihood would make Hadden eligible to be
regarded by Boomershine as one of the "instigators"
marked for liquidation.
In late May, when Hadden returned from a trip, he saw
Freitas and Brown who told him about the changes in the
seniority list. Hadden then went in to see Boomershine and
told him he did not think it was right for Freitas to be put
ahead of him and if Brown had been a line driver, for
seniority purposes, Boomershine should pay him retroac-
tively for line driver wages. Boomershine apparently
ignored this latter suggestion but stated Freitas had written
him a letter and offered to show it to Hadden. Hadden
replied he didn't want to see the letter and it was none of his
business and Boomershine told Hadden, "That's the way it
is, you're on the bottom of the list." Later that day, Earl
Osgood, Respondent's dispatcher, telephoned Hadden at
his home and said, as credibly related by Hadden, "He dust
told me Lynn Pacific Corporation could not use me any
more. I was at the bottom of the list and somebody had to
go and that was me."
This layoff, as previously noted, was during Respondent's
busy season and at a time when Respondent had trucks
under lease until 1972 with a no-termination provision. It
occurred within a few weeks since Boomershine had held
out the prospect of avoiding layoffs except presumably
possible in the winter months and on a rotating basis if the
drivers would reject the Union. Hadden was never recalled
by Respondent.
The next target of Boomershine was Floyd Alexander
who, along with Gewecke and Hadden, was apparently
regarded as one of the union "instigators." These three
drivers were the ones Boomershine had quizzed about being
friends of the union representative and to whom he had
shown Union Representative Appelbaum's business card.
They also were apparently the ones whose favor he had
attempted to curry by giving them a gratuity of $125 prior
to the NLRB election. On or about June 1, about the same
time Hadden was laid off, Alexander received a telephone
call from Osgood who told him he was reduced to casual
local driving. Boomershine admitted in his testimony that
local driving was the toughest and paid less. Alexander was
told by Osgood that his wages were being cut from $275 to
13 In his testimony Boomershine stated that it was the custom of line
drivers to receive line drivers' pay irrespective of whether they were doing
local driving. Boomershine admitted in the case of Brown it was a different
situation, that he was receiving local drivers' pay during the period that
Boomershme used to compute his line drivers' seniority This disparity in
treatment is consistent with the fact that Brown was dispatcher Earl
Osgood's stepson and the only line driver who did not sign a union
$200 per week. To make the job even less desirable, Osgood
told Alexander that he would only be used when needed
and that if he was not used he would not be paid. Alexander
told Osgood that he could not live with that situation.
Nevertheless he agreed to take a short line route the
following Monday. On that Monday, Alexander went to
Respondent' s premises to carry out his assignment and look
for the truck called the "Black Jimmie." The truck was not
on Respondent's premises apparently as part of the design
to insure that the working conditions would be so
intolerable that it would be impossible for Alexander to do
any work for Respondent. Alexander did not work for
Respondent after this event.14
Gewecke was the most senior line driver after Hadden
and Alexander had been removed from Respondent's
payroll. In order to keep Brown while discharging
Gewecke, Respondent contrived a reason for his discharge
which was demonstrably fictitious.
On June 13, Boomershine discharged Gewecke allegedly
because he did not have a California driver's license. An
examination of the circumstances attending this alleged
reason strengthens the finding that as a witness, Boomersh-
me was unreliable as well as fortifying the proposition
Gewecke was fired because of his union activities. His
determination to eliminate union sympathizers and particu-
larly the union "instigators" led him to use a thinly veiled
pretext in the case of discharging Gewecke.
According to Boomershine, when Gewecke was em-
ployed prior to his employment with Respondent, he had
incurred some fines for vehicle equipment violations on
which these prior employers defaulted and the financial
burden developed on Gewecke. In early 1969, the
outstanding fines approximated $1000 to $1500. Gewecke
explained the situation to Boomershine when his California
license expired in April and he was laid off temporarily. In
order to have his California license reinstated, it was
required of Gewecke that these fines be paid. Gewecke
discussed the situation with Mario Gonfiotti. As previously
noted, judging from correspondence in the record,
Gonfiotti occupied a relationship to Boomershine similar to
that of Osgood. Gonfiotti, on Gewecke's behalf, made
telephone calls to the California Highway Patrol or
California Motor Vehicle Department, and Respondent's
insurance broker. They all informed Gonfiotti that it would
be permissible for a driver to work for Respondent with an
out-of-state license. In Gewecke's presence, Gonfiotti
informed Boomershine that he had made the calls to the
Highway Patrol, the Motor Vehicle Department, and
Respondent's insurance broker, and that it would be legal
for Gewecke to go out of State and get a license. Thereupon
Boomershine and Osgood arranged for Gewecke to go on
the next trip to Portland, Oregon, where Gewecke's sister
lived. Gewecke rode with Floyd Alexander and on this
occasion he obtained a temporary license . He later returned
to Oregon with Alexander, obtained a permanent license,
authorization card
14 Osgood in his testimony claimed that Alexander's truck was loaded
and sitting at the dock all day He admitted he did not call Alexander and
did not call anyone else Osgood's testimony in this regard is rejected as
inherently incredible and is also rejected based on his witness chair
demeanor
THE LYNN PACIFIC CORP.
and showed this to Boomershine and Osgood . From this
time until his discharge Gewecke continued to drive with
the Oregon license . This period was from April until June
13, when he was discharged.
On that date after Gewecke returned from an out -of-state
trip , Boomershine called him into his office and explained
he could not keep him on because he didn 't have a valid
California license . Boomershine also showed Gewecke a
purported letter from his insurance broker. The document
contained Gewecke 's name but had no letterhead and
recited that the insurance would be terminated because of a
non-California license . That this letter was fictitious is
demonstrated by Boomershine 's reluctant concession on
cross-examination as follows:
Q. Did Mr Vaughn [Boomershine 's insurance
broker] tell you that you could not be insured if one of
your drivers was operating with an out of state license?
A That's not Mr . Vaughn's position.15
The failure of Respondent to produce the document
mentioned by Gewecke, and the failure of Boomershme's
insurance broker to corroborate the contention of Boom-
ershine that he was advised by his insurance broker to
terminate Gewecke, buttresses the finding that the
document to which Gewecke referred was fictitious.
Gewecke told Boomershine it would take approximately
$1000 to pay off the outstanding tickets in order to get his
California license reinstated . Boomershine told Gewecke
that he would like to help him but he did not have that
much money
In connection with Gewecke's discharge , Respondent
relies on a memorandum of March 21 , in which Boomersh-
me states that it is the policy of Respondent to operate
totally within the law.is It is noteworthy that it was after
this memorandum that Mario Gonfiotti had assured
Boomershine it was legal for Gewecke to drive with an out-
of-state license , and that Gewecke did so from April to
June . In this connection it is also noted that it was
15 The more complete statement of Boomershine on this subject is as
follows
Q Did you have any notification of any kind that it was
improper for Mr Gewecke to drive on an Oregon license''
A In going over the fact that I had a man on my payroll that was
not legally licensed, and after I had spent time in this Federal Building
on Federal and criminal charges involving truck drivers and lost
within the last year, I was discussing my insurance problems with my
insurance program man and he mentioned that I did have a man
driving that was not legally licensed and he merely supported and gave
me the courage or the guts to do something that I hadn't done
Q Who were you talking to, Mr Boomershme" Who was the
insurance man you were talking to"
A Jim Vaughn of Vaughn and Blake
Q Did you speak to him by telephone"
A I don't recall, possibly by phone
Q And what did Mr Vaughn tell you"
A Mr Vaughn said that-he informed me that he was not
running my business but that it was my duty, my obligation as the
manager of the firm to take precautions and make sure that we were
operating within the law
r • • r
Q And again, Mr Vaughn told you that it was your
responsibility to act within the limits of the law, is that correct"
A That's substantially correct
Q Well, where do we vary it" Perhaps you could more fully
explain what Mr Vaughn told you
A Mr Vaughn's obligation is to insure us, he also has the
obligation as a friend to try to keep me insured and if he, as he did, he
indicated to me that I should work within the law, protect my
595
Boomershine himself in April who had to be reassured
about the legality of Gewecke's driving with an out-of-state
license because he had laid Gewecke off temporarily until
the legality of using an out-of-state license could be
established, and thus until such license was obtained. Since
Boomershine reinstated Gewecke with an out-of-state
license after his memorandum of March 21, no credibility
attaches to Boomershine's claim that the discharge of
Gewecke in June was in accordance with the policy of that
memorandum. On the contrary, Boomershine's action in
reinstating Gewecke shortly after he issued his memoran-
dum of March 21 demonstrates his recognition that
Gewecke's Oregon driving license was consistent with his
policy of operating within the law. Moreover, one of the
sources reassuring Boomershine that the operation with an
out-of-state license was legal was his own insurance broker
who Boomershine claimed caused him to question the
legality of Gewecke's using an out-of-state license.17
The circumstances attending the discharge of John
Freitas on August 22 are more complex than in the cases of
the discharges of Hadden, Alexander, and Gewecke. In
connection with the latter three, Boomershine's antiunion
motivation was clearly evident as a factor in their
termination. Respondent did not produce any reason for
the discharge of Hadden nor for the constructive discharge
of Alexander, and the alleged reason for the discharge of
Gewecke was clearly pretextual.
After Freitas was laid off on May 23, approximately 10
days after the NLRB election, he was told by Boomershine
that manipulation of the seniority list, including a favorable
placement of Freitas, would enable Boomershine to get rid
of the union "instigators." The agreement between Freitas
and Boomershine on this occasion to keep the conversation
confidential suggests that at this date at least Boomershine
and Freitas were to some extent acting in concert.18
Respondent contends Freitas was discharged on August
22 because of a fine he got for an overload on his truck in
insurance
Q Did Mr Vaughn tell you that you could not be insured if one
of your drivers was operating with an out of state license?
A That's not Mr Vaughn's position
16 The memorandum read
March 21, 1969
TO ALL THE DRIVERS
We want it definitely understood that the Lynn Pacific Corporation
will not tolerate any drivers breaking any state or federal laws while in
the course of making deliveries in company trucks It is the company's
intent to operate totally within the law as to driving practices, times,
hours, speed, etc
Nothing will be asked to be performed which cannot be performed
within the applicable laws
It is the drivers responsibility to budget his time and begin each
driving period at the right time-early enough to do the job legally.
If the driver is asked to perform a job which will break the law, he
must make a point of this as soon as possible No one will give orders
which will knowingly break the law
THE LYNN PACIFIC CORPORATION
Lynn Boomerhine
President
cc Earl and Mario
Boomershine's claimed concern for operating within the law was not
evidenced when he was negotiating with his employees while a question of
representation was pending and when he cautioned them that it was illegal
for him to be dealing with them and for this reason he could not institute a
pay raise until the results of the NLRB election were announced
is That Boomershme was capable of using Freitas for his short term
advantage with the ultimate aim of disposing of him later is consistent with
(Continued)
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oregon, and also because he took his wife with him on a
trip.
Freitas testified that in the week before his discharge he
was sent to Oregon to pick up 36 rolls of paper. The
equipment that Freitas was originally going to use broke
down and he was required to take a two axle rather than a
three axle vehicle, which could only accommodate a
smaller load. When Freitas arrived in Oregon he advised
Osgood by telephone that he could not legally load the 30
rolls of paper that were available instead of the 36. Osgood
told Freitas he needed the rolls and to bring them
anyway.19 On his return to California, Freitas received a
citation in Oregon for an overload of 5600 pounds on the
front axle and a fine of $392.
It was an established practice with Respondent that if a
driver was told by the dispatcher to bring a load that was
overweight, the Respondent would pay the fine. This was
conceded by Boomershine in his testimony. Further, the
plausibility of this is suggested by the willingness of
Respondent to operate an illegally-loaded vehicle on the
highway. For example, immediately preceding the trip to
Oregon, Osgood conceded that he had instructed Freitas to
drive an illegal load in California. Further, the cost of
sending a driver and a rig to make the approximately 1500
mile round trip to Oregon would be undoubtedly less than
the $392 represented by the fine.
Osgood claimed that the truck could have been loaded
legally, and Freitas claimed it could not. It does not seem
possible on this record to reach absolute certainty, nor is it
necessary to resolve this question. One item of testimony
that suggests that it could not have been loaded legally is
that Freitas credibly testified without contradiction that
when he returned and told Osgood he had received a fine,
Osgood asked why he didn't try the fifth wheel and Freitas
told him that it would not have done any good, and Osgood
did not respond.
The version of Freitas' that Osgood told him to bring the
truck even though loaded illegally, appears more credible.
Since the Respondent was on notice that the load was
illegal, it was its obligation to pay the fine under its uniform
practice and in accordance with the testimony of Boom-
ershine.
After Freitas returned from the Oregon trip he left the
ticket for the $392 with Osgood and was dispatched on a
trip to Los Angeles. On his return he requested his wife to
pick up his check and she was advised by Osgood that
Freitas had been fired. Freitas immediately went to
Respondent's premises and Osgood told him he had been
fired because of the illegal load. When Freitas confronted
Boomershine with this, Freitas told Boomershine that
Osgood had given instructions to bring the illegal load and
that it was a practice for Respondent to pay the fine in these
circumstances. Boomershine told Freitas that he should
have called him when he first knew the load would not be
legal. This undenied credited statement of Freitas indicates
that Boomershme by implication accepted the proposition
Boomershine 's probing with Hadden as to whether the drivers might be
disabused of their inclination towards unionization if Boomershme got rid
of his dispatcher , Osgood
19 Osgood testified he drew a diagram for Freitas before he left for
Oregon to show him how to load the truck legally This seems highly
doubtful since the rolls vary in weight from 700 to 1200 pounds. and
that Freitas had been instructed by Osgood to bring in an
illegal load. It further indicates that the fact that Freitas
brought his wife with him on the trip was not a reason for
his discharge since nothing was said by Boomershine at this
time about Freitas' wife. Freitas responded to Boomershme
that he did not telephone Boomershine because in the past
these problems had been handled by the dispatcher.
Boomershme then informed Freitas if he wanted to work
for Respondent he would have to pay the fine and Frettas
refused. Boomershine refused to give Freitas his paycheck
until he paid the fine.20
To support his claim made at the hearing for the first time
that the fact that Frettas took his wife with him on the trip
was a secondary reason for his discharge, Boomershine
referred to a memorandum which he had issued on
February 23, 1969, which read as follows:
THE LYNN PACIFIC CORPORATION
333 Western Ave., Union City, Calif . 94587. Phone
(415) 471-5411
February 23, 1969
ATTENTION: Marto & Earl
You are to advise anyone other than yourselves & the
truckers and anyone I refer to you that company policy
dictated by our insurance company prohibits in all
cases the driving for personal use, any of our cars, or
trucks. NO EXCEPTIONS.
Insurance company says must have Class I License and
be checked out on our driver education and training
program.
NO EXCEPTIONS - Turn everyone down.
Lynn Boomershine
This interpretation does not appear to necessarily exclude
taking a passenger if the driver is performing company
business.
In addition to the above memorandum as a purported
basis to establish a rule against drivers taking their wives
with them on trips, Boomershine gave some other testimony
on this question. He had testified that he functioned as
president, sales manager, office manager, plant manager,
majority stockholder, and maker of managerial decisions.
In response to a question as to whether he had instructed
the drivers not to take their wives with them, he
demonstrated his capacity for overstatement. "I spend half
my time going over simple rules and regulations, including
not taking wives on equipment. I went over that with every
driver over and over again." Contrary to Boomershtne, the
testimony of Freitas, that Boomershme did not personally
tell him not to take his wife on trips is credited.
In all likelihood Boomershine was highly displeased when
he learned of the $392 fine imposed on the illegal load being
driven by Freitas. His displeasure at incurring this liability
Osgood testified that he told Frettas to pick up 35,000 to 36,000 pounds
and not a number of rolls Further, Freitas credibly denied that Osgood
drew him a diagram as to how the two axle truck should be loaded
20 The record does not indicate whether or not Freitas ever received his
paycheck
THE LYNN PACIFIC CORP.
would have been more logically directed towards Osgood
except, that consistent with the discharge of the other union
supporters, Boomershine directed his anger at Freitas and
used the incident as an occasion to rid himself of the last
union supporter among his drivers and the last one who
knew about the promises on which he had reneged that he
had made to the drivers. These promises, along with the
threats, had been made prior to the NLRB election and
were successfully aimed at causing the drivers to reject the
Union 21
In summary, it is found that the probabilities predomi-
nate in favor of a finding that the association of Freitas
with the Union played a part in the motivation of
Boomershine's decision to discharge him. As previously
indicated, it was Osgood rather than Freitas who was
responsible for the overload fine and it is uncontroverted
that Boomershine did not mention as a reason for Freitas'
discharge, that his wife went with him on a trip when he was
fired, but brought it up for the first time at the hearing.
Further, Osgood stated that Respondent was lenient in the
matter of the drivers' taking their wives with them at the
time of Freitas' discharge, thus negating Boomershine's
claimed interpretation of his memorandum of March 21
and his testimony that he had personally instructed the
drivers over and over again against taking their wives with
them. Boomershine had demonstrated his willingness on
one occasion to discharge Freitas because of his union
association. He did this within a few days after the NLRB
election and during the peak season of Respondent's
business. Hadden had told Boomershine all the drivers
(including Freitas) had signed authorization cards, and
Boomershine had evidenced deep antipathy to the Union
by the threats and promises he made prior to the NLRB
election. Discharging Freitas because of his union associa-
tion and on the pretext that the fine was the cause is
consistent with the pretextual nature of the prior termina-
tion of Gewecke. Further, Freitas was the last driver in
Respondent's employ who had signed a union authoriza-
tion card and who had personal knowledge of Boomersh-
ine's promises to improve conditions if the drivers avoided
the Union.
5. The Question of Whether a Charge was
Timely Filed in Connection with the Discharge of
Hadden and Alexander and the Alleged Violation
of Section 8(a)(2)
Section 10(b) of the Act provides in relevant part that:
... no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board and the service of
a copy thereof upon the person against whom such
charge is made.. . .
In this matter the initial charge was filed on October 13,
1969. It cited that Respondent had violated Section 8( a)(1),
21 During the course of his testimony, Freitas displayed that he was
capable of becoming angry with little provocation It is probable that
Boomershme correctly guaged Freitas' reaction to his insistence that
Freitas pay the $392 fine as a condition of employment Since this had not
been the practice in the past, it was the understandable reaction of Freitas
to refuse this condition Freitas had already been discharged by
597
(3) and (5) of the Act. The charge also contains the
following recital:
Within the past SIX MONTHS the employer has failed
and refused, upon the charging party's request, to
recognize it as the representative of its employees at the
time when the majority of the employees had designat-
ed the Union as its representative. Following the
request for recognition and during the course of the
representation election campaign, in Case No.
20-RC-8713 the employer threatened reprisals, prom-
ised benefits, and made modifications in the seniority
list of the employees, all for the purpose and with the
effect of persuading the employees to vote against the
Union.
On December 8, 1969, a first amended charge was filed
which eliminated a citation of Section 8(a)(5) and added a
citation of Section 8(a)(2) and continued the citation of
violations of Section 8(a)(1) and (3) of the Act.
The first amended charge contains the following
amplified recitals:
During the course of a representation election cam-
paign in Case No. 20-RC-8713 the above employer
threatened reprisals, promised benefits and made
modifications in the seniority list of the employees, all
for the purpose and with the effect of persuading the
employees to vote against the Union.
Within the past 6 months the above employer has
interfered with the formation and administration of and
has dominated an employee committee or association
functioning as a labor organization.
On or about the dates stated below the above employer
discharged the following employees because of their
support for an affiliation with the charging party.
LONNIE HADDEN 5/29/69
RON GEWECKE 6/11/69
JOHN FREITAS 10/1/69
On or about June 1, 1969, the above employer
constructively discharged FLOYD ALEXANDER
because of his affiliation with and support for the
charging party.
Respondent contends that because of the phrase "all for
the purpose and with the effect of persuading the
employees to vote against the Union," the discharge of
Hadden and Alexander on or about June 1, 1969, is barred
because their discharge occurred more than 6 months prior
to the filing of the amended charge on December 8, 1969.
Inasmuch as the initial charge filed on October 13, 1969,
alleges Respondent violated Section 8(a)(3) of the Act, and
also alleges Respondent made modifications in the
seniority list of its employees, and inasmuch as Hadden and
Alexander were fired by the modality of Respondent
modifying its seniority list, it is clear the initial charge was
adequate on which to base a complaint including the
unlawful discharge of Hadden and Alexander.
Respondent and the condition set out by Boomershine at this time was in
all likelihood made with the conviction that Freftas would not accept it and
it was also probable if Freitas had accepted , another pretext would have
been produced to insure that no driver who had been aware of
Boomershine 's conduct and promises in connection with the union election
would remain on Respondent 's payroll
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's argument makes the gratuitous assumption
that the phrase above quoted is one of limitation.
The function of a charge is to initiate Board action and is
not intended to serve a "notice purpose" as does the
complaint in the case here. N.L.R.B v. Fant Milling, 360
U.S. 301. The amended charge here clearly related to and
defined more precisely the violations of Section 8(a)(3). As
the General Counsel correctly points out in his brief, a
10(b) question is not involved here with respect to the
alleged violations of Section 8(a)(3), but rather the question
of whether the amended charge relates back and more
clearly defines the alleged violations of Section 8(a)(3) cited
in the original charge. The answer here is clearly in the
affirmative and there was a timely charge filed with respect
to the discharge of Hadden and Alexander.22
Another compelling reason for not regarding the quoted
phrase as a limitation on the citation of Section 8(a)(3) in
the initial charge is that it results in an absurdity. The
election was held on May 3 As the Respondent was well
aware, the modification of the seniority list occurred after
the election. It was posted by Respondent on June 3. An
assertion that Respondent was under the impression from
the charge that the modification of the seniority list was
only alleged to affect the NLRB election is, to say the least,
unrealistic . Further, the initial charge has the standard
recital "By the above and other acts the above-named
employer has interfered with, restrained and coerced
employees in the exercise of their rights guaranteed in
Section 7 of the Act." This recital in the initial charge was
more clearly defined and amplified in the amended charge,
by specifying the employees fired for antiunion reasons.
With respect to the inclusion of an alleged violation of
Section 8(a)(2) for the first time in the amended charge
more than 6 months after the events occurred, similar
considerations apply. In the first charge it is alleged
Respondent "promised benefits and threatened reprisals."
These were made on the condition and in connection with
Respondent's urging the employees to form their own
association. Hence, inclusion of a recital of the facts
constituting a violation of Section 8(a)(2) in the first
amended charge clearly relates back and more precisely
describes the conduct of Respondent's alleged violations in
the initial charge.
In Exeber, Inc. v. N L.R.B., 390 F.2d 127 (C.A. 9), the
court set out guidelines not only for adding additional
alleged discriminatees, but also for inclusion of violations
not named in the charge at page 129:
The holding of these decisions may be summarized
thus: (1) A complaint, as distinguished from a charge,
22 In N L.R B v Gaynor News Company, Inc, 197 F 2d 719 (C A 2)
(affd 347 U S. 17) at page 721
This section has been uniformly interpreted to authorize inclusion
within the complaint of amended charges-filed after the six months'
limitation period-which "relate back" or "define more precisely" the
charges enumerated within the original and timely charge The
"relating back" doctrine for this purpose has been liberally construed
to give the Board wide leeway for prosecuting offenses unearthed by
its investigatory machinery, set in motion by the original charge
N L R B, v Kobritz, I Cir, 193 F 2d 8, 14-16, Cusano v N L R B, 3
Circ, 190 F 2d 898, 903-904, N L R B v Kingston Cake Co, 3 Cir,
191 F 2d 563, 567, Kansas Mill Co v N L R B, 10 Cir, 185 F 2d 413,
415 Thus a general allegation in the original complaint that the
employer had interfered with employees in the exercise of their § 7, 29
need not be filed and served within the six months, and
may therefore be amended after the six months. (2) If a
charge was filed and served within six months after the
violations alleged in the charge, the complaint (or
amended complaint), although filed after the six
months, may allege violations not alleged in the charge
if (a) they are closely related to the violations named in
the charge, and (b) occurred within six months before
the filing of the charge.
6. Discussion and Concluding Findings
As reflected by the above, in the spring of 1969, when
Boomershine learned of union activity he took immediate
and forceful illegal steps to discourage union organization
among his drivers, He made several threats to close down
his business and sell his trucks. He told the drivers he
couldn't afford to pay union wages. He interrogated his
drivers as to their connection with the Union and how the
employees might vote. He attempted to influence the
election by giving employees money gratuities, holding a
special breakfast meeting, and holding out the prospect of
increased benefits if the employees voted against the
Union. He negotiated with the employees' association when
the NLRB election was scheduled and indicated he was
aware he was breaking the law in this respect.
After the NLRB election, Boomershine, within 2 weeks,
commenced to eliminate the four drivers who he knew
executed union authorization cards, and had supported the
Union. Although it was the busy season for Respondent's
trucking business, no reason was given for the layoff of
Hadden and the demotion of Alexander. In the case of
Gewecke and Freitas, pretextual reasons were used for their
discharge.
Boomershine's assertions that he needed his experienced
and sophisticated drivers and wanted to keep them, and his
statement that Respondent was operating with leased
trucks until 1972 without termination provisions, and the
fact that Hadden and Alexander were terminated in the
busy season for no stated reason are additional significant
factors supporting the finding that Hadden was "laid off"
and Alexander was constructively discharged and Gewecke
and Freitas were fired because of their union association
and activities.
Finally the testimonial manner of Gewecke, Hadden,
Alexander and Freitas, in contrast with that of Boomersh-
me and Osgood, reflected integrity and consistency in all
matters of substance and their testimony is credited in
support of the material findings made herein, including
their termination because of union activities.
U S C A § 157, rights by restraining and coercing them,
discriminating in regard to hire and tenure and refusing to bargain in
good faith, was subsequently-more than six months after the date of
the alleged violation-amended to allege discharges of particular
employees for legitimate union and strike activities Kansas Milling Co
v NLRB, 10Cir, 185 F 2d 413, 416
Similarly in N L R B v Pearson, Inc, 243 F 2d 456 (C A 5) at page 458.
[2[ It is familiar procedural law in cases of this kind that the
complaint is the first technical "pleading," and that the charge simply
sets in motion the investigation to determine whether or not the
complaint shall issue Technical precision is not, therefore, required in
the charge, and it is sufficient if it informs the alleged violator of the
general nature of the violation charged against him and enables him to
preserve the evidence relating to the matter
THE LYNN PACIFIC CORP 599
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, 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
thereof.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
V. CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act
2. Line Drivers Local Union No. 468, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of the Act.
3 By the discharge of Ron Gewecke, Lonnie Hadden,
and John Freitas, and by the constructive discharge of
Floyd Alexander, because of their union activities,
Respondent has discriminated against them to discourage
membership in the Union and has thereby engaged in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. By the encouragement of the employees to form the
Lynn Pacific Drivers Association for collective bargaining
with Respondent, by participating in negotiating sessions
with them, and by executing an agreement with them,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(2) and (1) of the Act.
5 By the following acts, Respondent has interfered
with, restrained, and coerced employees and has thereby
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act by:
(a) Threatening employees with layoff or discharge if
they selected the Union as their bargaining representative
(b) Threatening employees that Respondent would close
its plant, sell its trucks, and contract out the employees'
work if they designated the Union as their collective-
bargaining representative.
(c) Interrogating employees with respect to their union
activities and the union activities of other employees.
(d) Promising employees improved working conditions if
they refrained from designating the Union as their
collective-bargaining representative.
(e) Granting wage increases because employees refrained
from giving assistance or support to the Union.
6. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative action
necessary to effectuate the purposes of the Act.
It will be recommended that Respondent offer to Ron
Gewecke, Floyd Alexander, Lonnie Hadden, and John
Freitas immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their
seniority or other rights and privileges, and make them
whole for any loss of pay they may have suffered by reason
of the discrimination against them, by paying to each a sum
of money equal to that which he normally would have
earned as wages from the date of the discrimination to the
date of reinstatement less net earnings during such period
in accordance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289, together with interest
as in Isis Plumbing & Heating Co., 138 NLRB 716.
It will be further recommended that Respondent be
ordered to cease and desist from the types of activities
found herein. and any other violation of the Act together
with the affirmative actions specified in the recommended
Order.
Respondent's conduct in interfering with the rights of its
employees was extensive, flagrant, and deliberate and
manifested a disregard for any of the rights of employees
guaranteed by the Act. Because of the likelihood Respon-
dent would commit further unfair labor practices in view of
the disposition so evidenced on this record, a broad cease-
and-desist order will be recommended.
On the basis of the foregoing findings of fact and the
conclusions of law and the entire record herein, it is
recommended that pursuant to Section 10(c) of the Act, the
Board issue the following:
ORDER
Respondent Lynn Pacific Corporation, its officers,
agents, successors and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Line Drivers Local
Union No. 468, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or any
other labor organization of its employees by discharging,
demoting, or reducing the pay of employees or revising any
seniority lists of employees because of their union activities,
or in any other manner discriminating against employees in
regard to hire or tenure of employment or any terms or
conditions of employment.
(b) Making any threats to employees with respect to
curtailing Respondent 's business and loss of employment
by employees if the employees gave support to the
Teamsters Union or any other labor organization.
(c) Promising employees any benefits conditioned on the
employees' withholding support from the Teamsters Union
or any other labor organization.
(d) Interrogating employees about their union activities
or the union activities of other employees.
(e) In any manner recognizing or dealing with the Lynn
Pacific Drivers Association.
(f) In any other manner , interfering with, restraining or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2 Take the following affirmative action:
(a) Offer to Ron Gewecke, Floyd Alexander, Lonnie
Hadden, and John Freitas immediate and full reinstate-
ment to their former or substantially equivalent positions,
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Withdraw recognition from the Lynn Pacific Drivers
Association by posting the notice set forth in paragraph (d).
(c) Preserve and make available to the Board or its
agents , upon request, for examination and copying, all
payroll records and social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post in conspicuous places at its offices in Union City,
California, including all places where notices to employees
are customarily posted, copies of the notice attached hereto
as Appendix.23 Copies of said notice on forms provided by
the Regional Director for Region 20 of the National Labor
Relations Board, after being duly signed by an authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof and maintained by it for
60 consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of a copy of
this Decision what steps Respondent has taken to comply
herewith.24
23 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 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"
24 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 20, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "