The Millgard Corp.

National Labor Relations Board - Board Decisions

Mar 31, 1971

189 N.L.R.B. 533 (N.L.R.B. 1971)

THE MILLGARD CORP. 533
The Millgard Corporation and William R. Tyynismaa.
Case 7-CA-7793
March 31, 1971
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On November 18, 1970, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
in violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief, and
the General Counsel filed an answering 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, The Millgard Corporation, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommend-
ed Order
TRIAL EXAMINER'S DECISION
existing between Respondent as a member of Associated
General Contractors of America, Detroit Chapter, and
Local No. 247 (and other locals) of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called the Union), and threats
of loss of work and other benefits if he filed such grievance,
and was actually deprived of work and other benefits
because he filed it, in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended (herein
called the Act). The issues apse on a complaint issued April
7, 1970, by the Regional Director of the National Labor
Relations Board for Region 7,1 and answer of Respondent
admitting jurisdiction but denying the commission of any
unfair labor practices, and an order of the Board issued
August 4, 1970, which granted a motion of General Counsel
for review of orders of another Trial Examiner issued on
May 20, 1970, and June 11, 1970, which approved a private
settlement of the case between Respondent and Tyynismaa
and a withdrawal of the charge and dismissed the
complaint, and reopening the record herein for a hearing
before a Trial Examiner for receipt of evidence and
issuance of a Decision in accordance with the Rules and
Regulations of the Board. At the close of the testimony,
General Counsel and Respondent presented oral argument
on the issues. Written briefs filed by Respondent and
General Counsel after the hearing closed have been duly
considered in the preparation of this Decision.
On the entire record in this case, including my
observation of witnesses and their demeanor on the stand, I
make the following:
FINDINGS OF FACT
1. JURISDICTION AND THE LABOR
ORGANIZATION
Respondent is a Michigan corporation with its principal
office and place of business in Livonia, Michigan, where it
is in the business of building caissons It has similar plants
in other places but the Livonia plant is the only one
involved in this case In the operation of its business in
1969, Respondent had annual direct inflow of goods and
materials to the Livonia plant valued over $100,000, and in
the same period it performed services valued over
$200,000, of which services valued over $100,000 were
performed for employers in other States Respondent
admits, and I find, that it is and has been an employer
engaged in commerce within the meaning of the Act
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner. This case was tried
before me at Detroit, Michigan, on September 29 and 30,
1970, with General Counsel and the above-named Respon-
dent represented by counsel and the Charging Party,
William R Tyynismaa, appearing in person. The issues are
whether or not Tyynismaa was subjected by Respondent to
coercive questioning about his intended use of the
grievance procedure in a collective-bargaining contract
The complaint issued after Board investigation of a charge filed by
Tyynismaa on March 5, 1970
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
For some years Respondent has been a member of
Associated General Contractors of America , Detroit
Chapter, Inc. (herein called AGC), and as such member has
been bound by and operated under the terms of successive
3-year contracts executed by AGC and the Union in 1966
and 1969. The current contract is effective from May 1,
189 NLRB No. 82
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1969, to May 1, 1972, and contains a grievance procedure
reading as follows:
Article V. DISPUTES-JOINT ADJUSTMENT
COMMITTEE
(a) Disputes or controversies arising out of this
Agreement shall first be taken up between the Employer
and Union representative. Failing settlement of these
parties, the dispute, except jurisdictional disputes, and
disputes covered in Section (c) of this Article, shall be
referred to the Joint Adjustment Committee. It is
mutually agreed that disputes or controversies between
the parties arising out of this Agreement, including
differences as to interpretation of the terms of this
Agreement, shall be settled in accordance with the
procedures provided herein, and that there shall be no
strikes, slow-downs, tie-ups, lock-outs, or any other
form of work stoppage or delay on the part of the
employees or the Union, nor shall the Employer use any
methods of lock-out.
(c) It is mutually agreed that the provisions of this
Article shall not apply if the dispute arises over claim of
improper payment of wages, overtime, welfare fund,
vacation, holiday pay and/or pension contributions
provided for in this Agreement, after the Union has
given seventy-two (72) hours notice of their intent to
take economic action. Wage and overtime claims will be
considered only for the thirty (30) day period prior to
the filing of a grievance by the employee on which the
seventy-two (72) hour notice is based.
The contract also provides that "seniority rights for
employees shall prevail," and details the operation of the
seniority system on layoffs and rehiring of employees, and
other limitations upon seniority not pertinent here.
B. The Alleged Coercion of and Discrimination
Against Tyymsmaa
William R . Tyynismaa , a young man in his early thirties,
was hired by Respondent as a truckdriver at its Livonia
plant in May 1968, and throughout his employment has
been a member of the Union and covered by the above
contracts . The current contract , among other things, gave
drivers of Respondent a substantial raise in their basic
hourly pay and also increased overtime pay beyond an 8-
hour day and in excess of 40 hours a week from time-and-a-
half to double time. However, Respondent did not comply
with the overtime change, but continued to pay its drivers
time-and -a-half for all overtime . Tyynismaa became
concerned about this, as he knew all other employees at
Livonia were getting double time for overtime as required
by union contracts covering their work , so in May 1969, he
discussed it with the other driver, Richard Hurttgam,
2 During 1969, both drivers received on the average between 30 and 50
hours of overtime per week, which included both driving and performance
of odd jobs at the yard as needed, and although they were paid only time-
and-a-half for the overtime, they each were earning at a rate which
brought their total income for 1969 to nearly $21,000 each It is clear from
Tyymsmaa's testimony that O'Rourke had these high earnings in mind in
urging that they make a joint protest to John J. O'Rourke,
vice president and general superintendent of Respondent,
about it. Although Hurttgam agreed they should be getting
double-time pay, he refused to make an issue of it by
protesting to O'Rourke. Tyynismaa then talked to 0'-
Rourke himself, in the presence of Renick E. Shrader, shop
superintendent at Livonia who had direct supervision of the
operations of both drivers. Tyynismaa told O'Rourke he
could not "justify" working under the contract, because he
was getting 10 cents an hour less than the contract rate, and
was not getting holiday or vacation pay, or double time for
overtime work. O'Rourke told him not to "cut off your nose
to spite your face," that Respondent would willingly pay
him the basic contract rate and the holiday and vacation
pay required by it, but that Respondent could not afford to
pay him double time for overtime, and if Respondent had
to pay him double time it would be forced to hire another
driver, which would reduce the hours of the present
drivers.2 He also suggested that if Tyynismaa was not
satisfied with his job, he should look elsewhere for work.
Tyynismaa replied he was very happy working for
Respondent but did not "want to work that far under the
contract," that "we were lacking too much." O'Rourke said
he would think it over, and Tyynismaa should make up his
mind what he wanted to do and let him know. After
O'Rourke went back to his office, Shrader, who had heard
most of the discussion, told Tyynismaa that "you went too
far" and that he would "screw you out of more than you got
in." Angered by this, Tyynismaa sought out O'Rourke and
told him that Shrader had "made up my mind for me," that
Tyynismaa was not going to "take any bulling around," as
he felt he was doing his work properly, and that O'Rourke
could expect Tyynismaa to try to enforce the contract on
payment of double time . O'Rourke replied that Tyynismaa
should ignore what Shrader said, as he only had jurisdiction
over Tyynismaa while he was working in the yard, and that
of them knew Shrader had a "big mouth." He also said he
did not know about the other items in his complaint, but he
would give Tyynismaa a check right there for the 10 cents
an hour he had not been getting, and for vacation and
holiday pay retroactive, if Tyynismaa would overlook the
double-time claim. Tyynismaa agreed, and received a check
covering these benefits, except double-time pay. After that
both drivers continued to work overtime hours, receiving
only time-and-a-half pay for overtime work. On one or
more occasions in 1969 thereafter, Tyymsmaa asked
O'Rourke for overtime pay at the double-time rate, but
O'Rourke refused it for the same reasons he had stated
before.3
Early in February 1970, Tyynismaa complained to the
Union that he and Hurttgam were not getting paid double
time under the contract and wanted help in correcting this.
Union Agent Michael Nicoletti said he would write
Respondent about it without mentioning any drivers'
names, and on February 23, 1970, he wrote Respondent
that he had received notice it was violating the double-time
making these remarks
3 Tyynismaa admitted that he agreed to the compromise payment found
above, in part because of his receipt of steady work with high pay, and also
because he received payment for meals and motel expenses on the road
without limitation and a uniform allowance , all of which were benefits over
and above those required by the contract
THE MILLGARD CORP.
clause of the contract, that the Union would not condone
this but insisted that the drivers be paid double time for all
overtime under the contract.
When Respondent received the letter on February 24, it
was given to Shrader, who at once called Tyynismaa into
his office, showed him the letter and said that Respondent
wanted to find out if he had any problems, and, if so, to talk
them over with him privately, and that anything he told
Shrader would go no further. Shrader said that he really did
not care who wrote it, but if any driver was dissatisfied with
his job he could quit; Respondent was not going to pay
double time; and he was not making any "accusations" but
when the business agent of the Union came to the plant, the
drivers had better tell him they had made a mistake and
were now getting double time for overtime and that they
did not want to file "charges" against Respondent on this.
Shrader also suggested that, if after such statement the
Union still wanted to see the time and pay records, Shrader
would either alter the timesheets physically to make it
appear that they were getting double time, or "it would be
altered verbally between us." He also said that, if the
drivers insisted on double-time pay for overtime, Respon-
dent could not afford it and would have to hire one or two
more drivers, and limit the hours of all drivers to the 60
hours required by regulations of the Interstate Commerce
Commission. He said Respondent wanted to know by
Friday night, February 27, what the drivers were going to
do about it.
That night Tyynismaa wrote out a grievance and mailed
it to the Union. On February 27, the Union formally sent it
to Respondent with a request for immediate investigation
and report on it to the Union within 5 days. Respondent did
not receive it until Monday, March 2, but at close of work
on February 27, Shrader asked Tyynismaa if he had made
up his mind how he wanted to handle the overtime claim.
Tyynismaa replied he had filed a grievance on it and
Respondent should get it by Monday. Shrader then took
Tyynismaa into his office and said he wanted to tell him
what things "were going to happen to you here." He told
him: Respondent would no longer "be so free" with
payment of drivers' meals and motel expenses, they would
only get a fixed amount toward such expenses, except for
tolls. Respondent would pay double time for overtime
"strictly" in accordance with the contract requirements, but
the drivers would no longer be allowed to drive more than 8
hours a day, except on specific authority from Shrader or
O'Rourke, that they would have to call Shrader at 4:30 p.m.
each day to find out whether Respondent needed their
trucks the next day. Respondent would ship by other means
if economically possible, and there would probably be
many days when Tyynismaa would not be called because
there would be no need for his truck. Respondent would no
longer overlook it if a driver reported for work late in the
morning or came back late from lunch, unless an excuse
was given. In future the drivers would have to show all fuel
discounts on credit slips submitted for payment of fuel en
route.
When the grievance letter came to his attention on March
2, Shrader called both drivers to his office for separate
private conferences. When Hurttgam came in, he showed
him the letter and asked if he was unhappy with his working
535
conditions. Hurttgam replied that Tyynismaa had talked to
him about filing a joint grievance about nonpayment of
double time for overtime, and that, "as conditions were," he
would not file a grievance of his own on this. Shrader said
"fine, I am happy with that."
Before he quit work on February 27, Tyynismaa had
loaded a trailer for a delivery to Cleveland, Ohio, on March
2. When he reported for work that day, Shrader directed
him to disconnect his tractor from that trailer, which he did,
parking it outside in the yard and beginning to lubricate it
as usual . In the meantime , Shrader had Hurttgam
disconnect his tractor from the other trailer and hook up to
the loaded trailer, Hurttgam did so and drove it to
Cleveland. While Tyynismaa was servicing his tractor
about 9:30 a.m., Shrader told him "you might as well take
off, I will let you know when we have something for you."
Tyynismaa went home, and Shrader paid him 2 hours of
"show-up time" for that morning. According to Tyynismaa,
this was the first time in his entire employment that he had
been sent home early in the day. When he learned he
received 2 hours' pay that day, he complained to the Union,
whose agent reminded Shrader that Tyynismaa should get 4
hours' pay because Shrader had ordered him to do work in
starting up his tractor, disconnecting it from the trailer, and
moving it elsewhere. Shrader then changed the pay record
to give Tyynismaa 4 hours' pay.
On March 3, Tyynismaa reported for work as usual and
was assigned by Shrader to help Hurttgam loading his
trailer for a trip. Later that morning the Union's business
agents, Nicoletti and Jim Liuzzo, came to the plant and
conferred with Shrader and O'Rourke, with both drivers
present, about the Tyynismaa gnevance. While O'Rourke
was absent at the outset to handle a phone call, the parties
discussed whether Respondent was paying proper "shift
rate" under the contract, the union agents disagreed with
Tyynismaa's interpretation of the contract terms on this,
and in effect decided he had no grievance on this point.
They discussed a few other aspects of the grievance and it
was agreed there was no ment to them. When O'Rourke
returned, they turned to the question of double-time pay.
Shrader produced records showing the total pay of both
drivers for the last 60 days and for 1969 (over $20,000),
arguing they made about the same total pay and there was
no discrimination against Tyynismaa in this respect. All
parties agreed that the total pay of each was very high for a
truckdriver, and one business agent commented Tyynis-
maa was one of the 100 highest paid truckdrivers in the
nation; O'Rourke asked Tyynismaa if he was not satisfied
with $20,000 a year and wanted 40,000. Shrader argued
that the substantial overtime hours given each driver
amounted to a bonus to them, but Respondent could not
afford to pay double time for the overtime hours. The
discussion narrowed down to the exact length of a weekend
for overtime pay purposes, Tyynismaa insisting it should
start at 4:30 p.m. Friday and run to 8 a.m. Monday, and
Shrader arguing it should start only after a driver returned
to the yard after 4:30 p.m. and started a new run that night
or on Saturday. When the parties disagreed on this, the
business agents had a private talk with the drivers, advising
them to "turn their backs" if Respondent continued to pay
only time-and-a-half overtime, because they were earning
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so much. After further discussion with the company
officials the Union proposed that Respondent continue to
pay time-and-a-half for all overtime after 8 hours daily,
Monday through Friday, and that double time should
begin on weekends only for work after a driver returned
from a run Friday night, even if it was after 4:30 p.m., and
this arrangement should continue for 90 days to see "how
it would work out." Tynnismaa disagreed with this plan,
and Shrader said he would have to check with President
Millgard and O'Rourke before he could approve it After
the close of the meeting and the business agents had left,
Shrader conferred with his superiors, recommending it be
rejected because paying of two rates would cause
"confusion" and also cost much more, and then called the
union agents to advise that Respondent could not accept
the proposal, but would adhere strictly to the contract
terms, to avoid "future trouble." Shrader also told
Tyynismaa that Millgard had decided he would make no
"deals" with the Union, but would continue to pay for
overtime as at present according to his own interpretation
of the contract.
In the 5 or 6 weeks following the conference, Respondent
called Tyynismaa to work only f6r a total of 6 days, but has
not given him any work since. In the week of March 2,
Respondent gave work only to Hurttgam. Tyymsmaa
complained about this to the Union, and when its agent
called Shrader about it, Shrader explained it had no work
for more than one driver, so it gave the work to Hurttgam,
the senior employee
About a week later, when the Union called Shrader at the
insistence of Tyynismaa to find out why an outside carrier
had made a run for Respondent on a Saturday, and a
company driver had not been used, Shrader explained he
had tried unsuccessfully to reach both drivers, so had been
forced to hire an outside carrier, but had paid Hurttgam for
Saturday work pursuant to the contract. This satisfied the
Union.
Late in April, the Union called Shrader about a
complaint from Tyynismaa that Respondent had used a
nonunion driver to drive a pickup truck. Shrader explained
he had sent a shop employee (a yardman) to pick up a badly
needed roll of cable from a supplier who could not deliver it
himself, because it would have taken much longer to locate
Tyynismaa and bring him to work to go for the cable, than
to send the shop employee. At the Union's insistence,
Respondent paid Tyynismaa 4 hours' pay on this occasion,
though he did no work, and the Union did not press the
grievance further. On this occasion, Hurttgam had not been
available, because he was driving on a normal run.
Since March 3, Respondent has paid Hurttgam double
time for overtime in accordance with the contract. In 17 out
of 18 weeks up to June 30, 1970, he has received overtime
work, in 13 weeks working 60 or more hours.4
4 The above facts are found from credible testimony of Tyymsmaa,
O'Rourke, Shrader, and Larry B Smith , which is mutually corroborative
for the most part, and documentary evidence Testimony of any of these
witnesses in conflict therewith is not credited
C. Contentions of the Parties, and Final
Conclusions on Alleged Coercion and Discrimination
On the issue of alleged coercion of Tyynismaa on and
after February 24, 1970, I note at the outset that O'Rourke
remarks to and dealings with Tyynismaa in May 1969, as
found above, fall outside the 6-month statute of limitations
set forth in Section 10(b) of the Act, so they cannot be made
the basis of any finding of coercion in violation of the Act
or support any remedial order. However, the Board has
often considered employer actions outside the limitation
period as background which may throw light on the true
motive for and character of similar or other conduct within
that period.5 Hence, I must find that immediately after the
effective date of the current contract, Respondent began to
violate it by ignoring its new base rates and other financial
benefits, as well as the requirement of double time for
overtime work of its drivers, and when Tyynismaa
complained about the violations, Respondent resorted to a
threat to reduce the hours of its drivers if they insisted upon
double time for overtime, and thereby effectively persuaded
Tyynismaa to drop that claim, at the same time that it
reimbursed him for moneys lost by its failure to observe
other financial requirements of the contract. If this conduct
had been set forth in a timely charge before the Board
followed by a timely complaint, it would have justified a
finding of coercive threat of loss of benefits, followed by a
discriminatory deprivation of such benefits in the future,
because Tyymsmaa engaged in activity protected by the
Act .6 Therefore, I must further find and conclude that,
when Shrader showed Tyynismaa the Union's first letter on
February 24, 1970, and queried him about his "problems"
in terms indicating he was trying to find out who caused the
Union to write the letter about the violation of the overtime
pay clause of the contract, suggested that any driver who
did not like his work could quit, and warned that, if the
drivers insisted on double-time pay, Respondent would hire
other drivers and reduce the overtime hours of drivers
below what they were presently getting, he was engaging in
the same coercive threat of reduction of present benefits in
retaliation for insistence upon their contract rights, that
Respondent had indulged in 1969, and I must find that by
such interrogation and threats Respondent violated Section
8(a)(1) of the Act The same coercion was repeated and
broadened by Shrader, after he learned of the filing of the
grievance on February 27, when he bluntly threatened
Tyynismaa with (1) loss of other benefits the drivers had
been receiving over and above contract requirements
(which by their continued grant to and acceptance by the
drivers had become part of their wages and working
conditions), and (2) imposition of harsher working
conditions in the form of mandatory reporting for work on
time, mandatory reports to the office daily at end of day
shift before overtime work could be allowed, (3) mandatory
procurement of discounts on all cash fuel purchases, and
(4) threatening a reduction of work for drivers by resort to
common carrier transportation. I find that by such remarks
5 Patterson Menhaden Corporation, 161 NLRB 1310, 1311
6 Baumann Construction Co, 181 NLRB No 80 , Great Falls White
Truck Co, 183 NLRB No 64, and cf Tom Johnson, Inc, 154 NLRB 1352,
enfd 378 F 2d 324 (C A 9)
THE MILLGARD CORP.
to Tyynismaa Respondent further coerced employees in
violation of Section 8(a)(1) of the Act.7
In light of these unfair labor practices , the facts that
Respondent , after the conference with the Union on the
grievance , suddenly reduced the amount of work given to
Tyynismaa from March 2 onward , and sometime in April
laid him off (as Shrader admitted ) by not calling him in to
work at all, presents a strong prima facie case of actual
discrimination against him in violation of Section 8(a)(1)
and (3 ) of the Act, which requires Respondent to adduce
strong evidence to rebut it.
Respondent claims that it in effect laid off Tyymsmaa
because it no longer had enough work for more than one
full-time driver, so it retained Hurttgam , the senior driver,
in accordance with the seniority provisions of the contract,
and that this layoff was compelled by a long-continued
change of its operations which beginning in 1969 made
extensive use of common carriers more economical. On this
subject , I find from uncontradicted testimony of Shrader,
O'Rourke, and Larry B. Smith , treasurer of Respondent,
and documentary evidence that up to about 1968
Respondent 's business was concentrated largely in an area
in Michigan , Illinois, and Ohio within a 300-mile radius of
Detroit , in course of which it used mainly its own drivers
for round-trip hauls which terminated within an 8-hour
day, with little need for overtime pay or other expenses
involved in overnight trips. Since 1968, its business has
expanded to include projects further afield , with an
increasing number of jobs in the South and on the East and
West Coasts of the United States. It now maintains an
office in Los Angeles , California , to supervise West Coast
work , and during 1969 it handled jobs in Massachusetts,
Connecticut , and Maryland. The distant jobs require much
overnight truck transportation of equipment to and from a
jobsite, and in servicing such jobs Respondent has greatly
increased its use of t ommon earners until about 75 percent
of its haulage in 1969 was by common carrier, because it
found that one-way hauls by such carriers were cheaper
than use of its own trucks and drivers , which would usually
involve return of its own truck and driver on overtime, with
extra meal , motel , and fuel costs. On its latest East Coast
job near Baltimore , Maryland, about 23 out of 25 hauls of
equipment back to Livonia in mid- 1969 were by common
carrier, the other 2 by company truck . Since mid-December
1969, and in the first 6 months of 1970, Respondent has
continued to make extensive use of common earners for
long-distance hauls, not only because it is more economical
in that such hauls are one-way trips, but also because most
of the trips were "permit" loads of unusual size which
required special trailers and special permits for travel
through various States, as well as accompanying flagmen in
automobiles for safety reasons; the starting points in many
cases were distant cities other than Livonia ; some hauls
required special "lowboy" trailers for unusual types of
equipment , which Respondent does not own ; and about 16
7 1 make no finding that Respondent violated the Act by Shrader's
statement to Tyymsmaa that insistence on compliance with the contract
terms would result in reduction of the drivers' overtime work to the 60-
hour limit required by regulations of the Interstate Commerce Commission
The record clearly shows that Respondent had been continually violating
that limitation by working both drivers up to 90 hours a week, despite
warnings about it from ICC officials in August 1968 Since Respondent
537
were short hauls between towns in Maryland. In this period
Tyynismaa made 7 to 9 trips between Livonia and
Maryland (up to his layoff), and during 1970 Hurttgam
made only infrequent long-distance trips , at the same ratio
(about 2 out of 25) as during the load-out program on the
1969 Baltimore, Maryland, job.
Respondent relies on the above facts to show that its sole
motive for the layoff of Tyymsmaa was economic. General
Counsel argues that the economic situation was only a
pretext stated both to Tyymsmaa and in argument here to
conceal the true motive of discriminatory retaliation for his
formal complaint about Respondent's breach of the
overtime pay provision of the contract. There are
significant facts and circumstances which support the
position of General Counsel. Although it is clear that
Respondent had been increasing its use of common earners
for about 2 years, as its business expanded geographically,
its records show that through February 1970 it still had
enough need for transportation, outside of common
earners, to keep two drivers busy working substantial
overtime hours so that both were earning at a rate over
$ 20,000 a year. From this it is inferable that the need for
their services clearly outweighed any considerations of the
cost thereof, and that prior to the time Tyynismaa filed his
grievance , Respondent was not suffering financially from
extensive use of its own drivers. Respondent adduces no
proof to show that its business or income therefrom was
dropping off, gradually or suddenly, in 1970 or earlier, to an
extent which might cause it to review its transportation
costs and retrench in that area of expense. To the contrary,
admissions of O'Rourke and Shrader and Respondent's
arguments at the trial establish that, prior to Tyynismaa's
formal complaint, Respondent had never bothered to "cost
out" each transportation job or analyze the relative costs of
transportation by common carrier and its own trucks and
drivers. The reason for this indifference clearly appears
from the admissions of both officials that, as early as
August 1968, they knew they were working their drivers
overtime far in excess of the legal safety limits of 60 hours a
week imposed by ICC regulations, and the significant
circumstance that when Tyynismaa in 1969 first demanded
double time for overtime as required by the current
contract, O'Rourke and Shrader persuaded him to drop the
claim by reminding him that he was getting fringe benefits
over and above contract requirements as well as substantial
overtime work, which would be dropped if he insisted upon
double-time pay. This shows that Respondent did not feel it
was suffering financially, so long as it paid its drivers only
time-and-a-half for long overtime hours, even during 1970.
It is significant that the overtime expense suddenly loomed
large and became intolerable with an instant need for
reduction after hasty comparison with costs of common
carriers, resulting in a quick decision to reduce overtime
and cut back to a single driver, only after Tyynismaa
reneged on his 1969 agreement to continue the "informal"
had been violating the regulation , if not the Federal law on which it was
based, the announcement that it would henceforth obey the regulation by
working drivers no more than 60 hours a week cannot be considered a
coercive threat to reduce a legal working condition in retaliation for
Tyynismaa's protected concerted activity General Counsel does not argue
otherwise Cf Orleans Mfg Co, Inc, 170 NLRB No 9, and N L R B v
Indiana Desk Co, 149 F 2d 987 (C A 7)
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay and benefit arrangement with Respondent, and insisted
on his rights under the contract to the extent that the
private arrangement fell short of his rights thereunder
Respondent adduces no proof that payment of double-time
pay to the drivers for the many overtime hours they were
receiving would have a substantial impact upon Respon-
dent's business or income, such as might reasonably cause
it to review its operating costs. To the contrary, Shrader,
who has long been aware of the relative costs of
transportation by company trucks and common carriers,
admitted that if it paid its drivers double time for overtime
on long-distance trips, such as between Livonia, Michigan,
and Baltimore, Maryland, the cost to Respondent would be
only about $12 more in a total round-trip cost of over $600.
As Shrader admitted that during 1969 and early 1970 he
made a practice of assuring both drivers at least 40 hours of
work per week, and had been giving both substantial
overtime work, even though Respondent now claims on the
basis of comparative cost analyses in the record that
common carriers are and have been almost 25-percent
cheaper for one-way long-distance runs, it is clear that
Respondent was concerned more about working its drivers
to the fullest extent, as against use of common carriers,
without regard to the cost, so long as it was allowed to
continue to pay overtime at the former contract rates,
rather than the new rates, and that it continued their
employment on these terms after it persuaded Tyynismaa
in 1969 not to make an issue of the lack of double-time pay.
The discrimination against Tyynismaa after he filed his
grievance becomes more patent when Respondent's
treatment of its remaining driver after March 2 is
considered. Hurttgam refused to join Tyynismaa either in
1969 or 1970 in filing an informal or formal grievance, and
Shrader showed Respondent's pleasure at this attitude
when questioning Hurttgam about his work after receipt of
the formal grievance. Since March 2, Hurttgam has worked
steadily 40 hours or more per week, consistent with
Respondent's prior practice of assuring its drivers of a full
workweek or better; O'Rourke admitted that this assurance
was given though not required by the current union
contract, so in effect it carries on the "informal arrange-
ment" between Respondent and its drivers which in 1969
and early 1970 gave them benefits over and above contract
requirements in return for their tacit acceptance of
overtime pay below contract rates. Part of Hurttgam's
present overtime hours involve truck maintenance and
other incidental plant work, as before, which is also outside
the terms of the current contract. It is thus clear that
Respondent has continued the 1969 "informal arrange-
ment" with Hurttgam, the noncomplaming driver, plus the
addition of double-time pay for overtime, while suddenly
reducing the work hours of Tyynismaa and finally laying
him off. Respondent explains that its present operations
require it to keep only one full-time driver at Livonia to
operate efficiently, and that Hurttgam's overtime has in
fact dropped off somewhat. I find this hard to believe in
view of its expanding operations But if economy was the
basis of Tyynismaa's layoff, this does not explain why
Respondent has not called Tyynismaa for yardwork at
straight time, instead of giving Hurttgam such work (when
he is not driving) at double time for overtime nearly every
week , for clearly employment of both men for only a 40-
hour week at straight time to handle both hauling and
yardwork would be cheaper in the long run. In effect,
Respondent was doingjust this when for about 5 or 6 weeks
after the grievance conference it called Tyynismaa to work
part time when Hurttgam was not available , but it gives no
credible reason why it has not done so since. Nor dos it
explain credibly why it has not called in Tyynismaa to drive
the smaller tractor-trailer unit for on -the-job hauling on
out-of-state jobs, when it is needed for that work.
Respondent also argues that there was no coercion of
Tyynismaa in the 1969 or 1970 discussions about his pay
and working conditions, nor discrimination in his final
layoff, because in this period he had been working under
the "informal arrangement" outlined above, and admitted
by Respondent in its brief , and when O'Rourke offered him
several alternatives , such as quitting or getting reduced
overtime hours at contract overtime rates, as well as
rescission of certain other noncontract benefits , Respon-
dent was only exercising the right of either party to cancel
out at will any provision of the "informal arrangement."
This argument is without merit for several reasons. The
only legal "arrangement" as to drivers' wages and working
conditions was the 1969 contract with the Union , and any
other arrangement which changed or detracted from it
without bargaining with the Union would appear to be in
derogation of the employees ' rights to have the Union
represent them as bargaining agent and negotiate a contract
for them, its exclusive right to act as such , and their
protected right to enforce such contract . Insofar as the
"private arrangement" went beyond contract terms, it
apparently gave them improved working conditions to
which the Union certainly would not object to, and which
the Board would not change, but which Respondent was
entitled to curtail only for nondiscriminatory reasons.
Hence, when Respondent gave Tyynismaa the choice of
quitting his job, or losing his noncontract benefits as well as
overtime work, if he insisted on contract overtime rates, it
in effect coerced him into dropping his protected right to
insist upon contract rates by a thinly veiled warning that he
would suffer a reduction of working hours and loss of
working benefits given to him though not specified in the
contract. These alternatives were well calculated to coerce
him to relinquish rights protected by Section 7 of the Act
and violated Section 8(a)(1) of the Act. Substantially one of
these alternatives , a termination in the guise of a layoff, was
inflicted upon him in 1970 when he elected to exercise his
right to grieve about violation of his Union 's contract, and
this was clearly a discriminatory retaliation for his exercise
of that right , in violation of Section 8(a)(3) of the Act.
After careful consideration of the above facts and
circumstances , and the arguments of the parties thereon, I
am compelled to conclude that Respondent has not
sustained the burden of adducing cogent proof to rebut the
prima facie case of discrimination made by General
Counsel , and that on the entire record General Counsel has
sustained the ultimate burden of proving by substantial
evidence that Respondent coerced and threatened Tyynis-
maa in February 1970 and discriminated against him on
and after March 3, 1970, by reducing his hours of work and
eventually laying him off, because he exercised his
THE MILLGARD CORP.
protected right to enforce the overtime provision of
Respondent's contract with the Union, and thereby
violated Section 8(a)(3) and (1) of the Act.8
III. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section II,
above, occurring in connection with the operations of
Respondent set forth in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully reduced the
working hours of William R. Tyynismaa and eventually
laid him off, I am constrained to make the usual
recommendation that Respondent restore him to the status
quo ante the violation, involving full reinstatement to his
former position and privileges. However, Respondent
argues that the trend of its business in 1970 has involved
increasing use of common carriers with corresponding
reduced use of its own trucks and drivers, such that it
presently has no economic need for more than one full-time
driver, hence the only proper remedy would involve the
placement of Tyynismaa on a preferential hiring list. I
cannot agree. Respondent's own records show that its
increasing use of common carriers had not up to March 3,
1970, reduced its need for company drivers to the point
where it had no more than 40 hours of work for one driver
each week, but rather that at that time and for 6 or 8 weeks
thereafter it still had work for two drivers, and it is
significant that, as a result of its discrimination against
Tyynismaa, it still has need for more than a normal week of
work for one driver, as it has been giving that driver steady
overtime work, at times still working him beyond the legal
60-hour-a-week limit. If there has been any continued
overload of work on the remaining driver since March 3,
1970, it has been due only to Respondent's discrimination
against Tyynismaa Respondent cannot be permitted to
profit by its own unfair labor practices. Hence, I shall
recommend that Respondent offer Tyynismaa immediate
and full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed,9 and make
him whole for any loss of earnings he may have suffered as
a result of the discrimination against him, by payment to
him of a sum of money equal to the amount he would have
8 I have considered other corollary arguments made by Respondent, but
find it unnecessary to discuss them in detail, as they are answered by the
findings and conclusions above
9 In accordance with recent Board policy, the recommended order and
notice will provide that the offer of a substantially equivalent position will
be required only if it appears, in the compliance stage of this case, that his
old job in fact no longer exists because of economic conditions
539
earned from the date of the discrimination to the date of a
proper offer on reinstatement, less any net earnings in that
period, including any amount that may have been given to
him on or before May 20, 1970, in the abortive private
settlement between him and Respondent, the backpay to be
computed in the manner established in F. W. Woolworth
Company, 90 NLRB 289, and to include interest at the rate
of 6 percent per annum, as required by Isis Plumbing &
Heating Co., 138 NLRB 716. The illegal curtailment of
working hours and eventual layoff also warrants issuance
of a broad cease-and-desist order and notice.
CONCLUSIONS OF LAW
1. The Union is a labor organization, and Respondent
is an employer engaged in commerce within the meaning of
the Act.
2. By reducing the work hours of and laying off William
R. Tyynismaa, because he engaged in activities protected
by the Act, Respondent has discouraged membership in a
labor organization and has thereby engaged in unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and (7) and 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed to them by
Section 7 of the Act, by the above discrimination against
Tyynismaa, and by interrogation of and threats to
employees, Respondent has engaged in unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and (7) and 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and on the entire record in this case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following:
RECOMMENDED ORDER 10
The Millgard Corporation, of Livonia, Michigan, its
officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Discouraging membership in Local 247, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization of
any of its employees, by reducing hours of work or laying
off its employees, or in any other manner discriminating in
regard to their rates of pay, hours of work, hire, tenure, or
other conditions of employment.
(b) The above discrimination, interrogation of employees
about their proposed or actual filing of grievances under
Respondent's Contract with the above or any other labor
organization, or other concerted activities, threats to
deprive them of benefits because of such activities, or in
any other manner interfering with, restraining, or coercing
them in the exercise of rights guaranteed to them by Section
7 of the Act, except to the extent that such right may be
affected by an agreement requiring membership in a labor
substantially beyond the control of Respondent
10 In the event no exceptions are filed as provided by Sec 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 Sec 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
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment as authorized in
Section 8(a)(3) of the Act
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Offer William R. Tyynismaa immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges
previously enjoyed. I'
(b) Make William R. Tyynismaa whole for any loss of
earnings suffered by reason of the discrimination against
him in the manner set forth in the section hereof entitled
"The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze and compute the amount of backpay
due and the right of reinstatement provided in this
Recommended Order.
(d) Post at its place of business and terminal at Livonia,
Michigan , copies of the attached notice marked
"Appendix ." 12 Copies of said notice , on forms provided by
the Regional Director for Region 7, after being duly signed
by Respondent 's authorized representative , shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are
customarily posted Reasonable steps shall be taken to
insure that said notices are not altered , defaced , or covered
by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days after receipt of this Decision , what steps
have been taken to comply herewith.13
li As the record shows Tyynismaa has long since been honorably
discharged from his obligations for military service , the usual provision for
notice to employees presently serving in the Armed Forces is not
recommended
12 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 "
13 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director , in writing,
within 20 days from the date of this Order, what steps Respondent has
taken to comply herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence , the National Labor Relations Board
has found that we , the Millgard Corporation , violated the
National Labor Relations Act, and ordered us to post this
notice.
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything which interferes with these
rights.
WE WILL NOT question you about your proposal to
file, or actual filing of, grievances under our contract
with Local 247, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America , or any other labor organization , or any other
concerted activities.
WE WILL NOT threaten to reduce your working hours
or deprive you of other benefits because of your
proposals to file, or actual filing of, such grievances
under such contracts.
WE WILL NOT discourage membership in Local 247,
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization , by reducing hours of work or laying
off our employees, or in any other manner discriminat-
ing in regard to their rates of pay, hours of work, hire,
tenure, or other condition of employment.
WE WILL give William R. Tyynismaa back his job
with seniority and other privileges or, if that job no
longer exists, offer him a substantially equivalent job,
and will make him whole for any loss of pay he may
have suffered by reason of our discrimination against
him.
Dated By
THE MILLGARD
CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 500
Book Building, 1249 Washington Boulevard , Detroit,
Michigan 48226 , Telephone 313-226-3200.