T&J Trucking Co.

National Labor Relations Board - Board Decisions

Mar 17, 1995

316 N.L.R.B. 771 (N.L.R.B. 1995)

771
316 NLRB No. 120
T&J TRUCKING CO.
1 On December 3, 1993, the judge issued an erratum which cor-
rects his inadvertent omission of the provision for interest in his rec-
ommended Order and notice to employees. The error in the erratum
has been noted and corrected.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 All dates are in 1992 unless otherwise indicated.
4 By September 4, a majority of the Respondent’s employees had
signed union authorization cards.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
6 See Casey Electric, 313 NLRB 774 fn. 2 (1994).
7 NLRB v. Transportation Management Corp., 462 U.S. 393, 400
(1983).
8 See GSX Corp. v. NLRB, 918 F.2d 1351, 1357 (8th Cir. 1990)
(‘‘By asserting a legitimate reason for its decision and showing by
a preponderance of the evidence that the legitimate reason would
have brought about the same result even without the illegal motiva-
tion, an employer can establish an affirmative defense to the dis-
crimination charge.’’)
9 See Aero Metal Forms, 310 NLRB 397, 399 fn. 14 (1993).
T&J Container Systems, Inc., d/b/a T&J Trucking
Co. and Rhode Island Laborers’ District Coun-
cil and its affiliated Local 1322, a/w Laborers’
International Union of North America, AFL–
CIO. Cases 1–CA–29701, 1–CA–29885, and 1–
CA–29945
March 17, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On November 30, 1993, Administrative Law Judge
Frank H. Itkin issued the attached decision.1 The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, as explained below, and to adopt the rec-
ommended Order.
The Respondent is engaged in the collection of com-
mercial trash. At its Johnston, Rhode Island facility, it
employs approximately 20 truckdrivers, equipment op-
erators, and mechanics. In August 1992,3 truckdriver
Robert K. Dorgan contacted the Charging Party (the
Union) to begin an organizing drive among the Re-
spondent’s employees.
On August 11, Dorgan and other interested employ-
ees attended a union meeting. Following that meeting,
Dorgan campaigned for the Union by soliciting and
collecting signed union authorization cards from his
coworkers.4 On August 21, the Union filed with the
Board a petition to represent the Respondent’s employ-
ees. On August 28, Antonio Pedroso, the Respondent’s
co-owner and president, met with Dorgan and dis-
charged him. During this period, Pedroso also spoke
individually with employees Joseph Cruso, Eric
Kelling, and William Melvin about the ongoing union
organizing.
The judge found that through Pedroso’s comments
to Cruso, Kelling, Melvin, and Dorgan the Respondent
violated Section 8(a)(1) of the Act by coercively inter-
rogating employees about their union activities, by
threatening discharge and plant closure if employees
selected the Union as their bargaining representative,
by suggesting futility in employees’ selection of the
Union as their bargaining representative, by creating
the impression that employee union activities were
under surveillance, and by unlawfully promising bene-
fits to an employee. The judge also found that the Re-
spondent violated Section 8(a)(3) and (1) by discharg-
ing Dorgan. In addition, the judge imposed a bargain-
ing order as part of his remedy.
After careful review of the record, we reject the Re-
spondent’s exceptions and adopt the judge’s findings
and remedy for the reasons stated in his decision. Each
8(a)(1) finding is supported by substantial evidence
and is in full accord with governing legal principles.
We also find sufficient evidence to support the judge’s
conclusion that Dorgan was unlawfully discharged for
his union activity. We further find no merit to the Re-
spondent’s contention that a bargaining order is inap-
propriate because two unit employees who were di-
rectly subjected to the illegal activity have ceased
working for the Respondent.
1. The analysis set forth in Wright Line5 governs the
determination whether Dorgan’s discharge violated
Section 8(a)(3) and (1) of the Act.6 Under Wright Line,
the General Counsel must make a prima facie showing
that the employee’s protected union activity was a mo-
tivating factor in the decision to discharge him. Once
this is established, the burden shifts to the employer to
demonstrate that it would have taken the same action
even in absence of the protected union activity.7 An
employer cannot simply present a legitimate reason for
its actions but must persuade by a preponderance of
the evidence that the same action would have taken
place even in the absence of the protected conduct.8
Furthermore, if an employer does not assert any busi-
ness reason, other than one found to be pretextual by
the judge, then the employer has not shown that it
would have fired the employee for a lawful, non-
discriminatory reason.9
Although the judge did not explicitly analyze Dor-
gan’s discharge with a reference to Wright Line, his
findings are consistent with that decision. He found
that Dorgan was discharged because the Respondent
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 ‘‘The ALJ alone had the opportunity to hear the testimony and
observe the witnesses’ demeanor; thus, he was best suited to resolve
conflicts in testimony (case citation omitted).’’ NLRB v. Del Rey
Tortilleria, 787 F.2d 1118, 1121 (7th Cir. 1986), enfg. 272 NLRB
1106 (1984).
11 In fact, the Respondent’s general manager, Dorgan’s father,
characterized the last accident involving his son, which occurred
about 2 weeks before August 28, as ‘‘probably a non-preventable ac-
cident.’’ Cf. Synergy Gas Corp. v. NLRB, 19 F.3d 649 (D.C. Cir.
1994), denying enf. in relevant part 309 NLRB 179 (1992) (where
employee was lawfully fired for his gross negligence in causing an
accident with a company vehicle).
12 Contrary to the Respondent’s assertion in its supporting brief to
the Board, the record shows that the General Counsel has never con-
ceded that Dorgan was terminated in July for speeding or reckless
driving.
13 Contrary to the Respondent’s assertion in its supporting brief to
the Board, the record shows that the General Counsel has never con-
ceded the existence of a ‘‘last chance’’ agreement pertaining to Dor-
gan, that Dorgan was reinstated in late July according to such an
agreement, or that Dorgan was working under the terms of such an
agreement on August 28.
14 See Cla-Val Co., 312 NLRB 1050 (1993) (where the employer’s
statement that an employee had a ‘‘negative attitude toward manage-
ment’’ was considered ‘‘a euphemism for [the employee’s] leader-
ship role in the Union’’).
had recently learned from employee Cruso that Dorgan
was chiefly responsible for the union campaign. Based
on the credited evidence, he specifically rejected as
pretextual the Respondent’s asserted reason that Dor-
gan was fired because of his poor driving record.
Therefore, the judge essentially found a prima facie
case of discriminatory conduct and rejected as
pretextual the Respondent’s proffered defense.
The Respondent challenges the judge’s findings re-
garding Dorgan’s discharge on the following ground. It
argues that it met its Wright Line burden by establish-
ing that Dorgan would have been terminated in the ab-
sence of his protected union activity. According to the
Respondent, Dorgan was terminated for his poor driv-
ing record. The Respondent points out that Dorgan was
not a model employee, was involved in three accidents
with company vehicles, and had accumulated more
complaints about his driving than any other employee.
Next, the Respondent claims that Dorgan had been ter-
minated in late July for speeding and reckless driving
and that he was later reinstated on a ‘‘last chance’’
agreement on July 25. Finally, the Respondent asserts
that Dorgan breached that agreement by another inci-
dent of speeding and reckless driving on August 28, as
reported to Pedroso by Edward Scanlon, the Respond-
ent’s sales manager, who witnessed the purported mis-
conduct. The Respondent seeks dismissal of the com-
plaint allegations regarding Dorgan’s discharge.
We find that the Respondent’s argument for dismis-
sal relies on discredited testimony and completely ig-
nores the evidence credited by the judge which reveals
the following pertinent facts.10 Before the union drive
began, the Respondent had tolerated Dorgan’s driving
habits, despite alleged complaints from Scanlon and
others, and had taken no action against him based on
his driving record. Prior to August 28, Dorgan had
never been disciplined for his involvement in accidents
with company vehicles.11 In addition, the Respondent
had permitted Dorgan and its other drivers to operate
company trucks which did not have functioning speed-
ometers and brakes, thereby undercutting any pur-
ported safety concern to justify the Respondent’s deci-
sion to discharge Dorgan.
With respect to the late July events, the credited evi-
dence does not show, as claimed by the Respondent,
that Dorgan was terminated for any bad driving12 or
that he was placed on a ‘‘last chance’’ agreement upon
his return to work in July.13 As noted by the judge,
the Respondent had acknowledged that neither Dor-
gan’s timecard nor any other company document cor-
roborated the Respondent’s version or its theory of the
‘‘discharge’’ of Dorgan in late July. Rather, Dorgan
credibly testified that in his July 25 meeting, Pedroso
voiced strong displeasure over his hairstyle. Dorgan
further credibly testified that Pedroso sent him home
because his hairstyle was unacceptable and that, a few
days later, he was permitted to return to work after
getting a haircut.
Regarding the August 28 events, the credited evi-
dence reveals that Dorgan was not operating truck 31
in the manner contended by the Respondent. Dorgan
credibly testified that truck 31 did not have a func-
tional speedometer and its ‘‘highest speed’’ that day
was only about 45 miles per hour. On the other hand,
Pedroso initially testified that Scanlon observed truck
31 traveling ‘‘around 70’’ miles an hour that day,
whereas Scanlon testified that he had reported 65 miles
per hour. However, Pedroso later admitted in his testi-
mony that the highest possible speed for truck 31 was
‘‘54’’ miles per hour. Furthermore, Scanlon testified
that the posted speed limit on the road where he ob-
served Dorgan’s truck traveling on August 28 was 55
miles per hour. Thus, we find that, under the revised
scenario presented by Pedroso and Scanlon at the hear-
ing, Dorgan was properly driving within the posted
highway speed limit.
The judge further credited Dorgan’s account of his
one-on-one interview with Pedroso in the latter’s office
on August 28. When Dorgan returned to the shop that
day, Pedroso repeatedly interrogated him about his
union involvement and responsibility for the instigation
of the union campaign. Pedroso then told him that he
was terminated for having a ‘‘bad attitude’’ without
giving any specifics.14 Interestingly, Pedroso did not
mention Scanlon’s complaint or accuse Dorgan of any
speeding or reckless driving that day.
Given all the above circumstances, we find suffi-
cient evidence supports the judge’s finding that the Re-
spondent’s proffered reason for discharging Dorgan
773T&J TRUCKING CO.
15 Salvation Army Residence, 293 NLRB 944, 945 (1989), enfd.
mem. 923 F.2d 846 (2d Cir. 1990).
16 Id.
17 See NLRB v. Horizon Air Services, 761 F.2d 22 (1st Cir. 1985).
18 The 8(a)(1) activity was targeted not only at Cruso, Kelling, and
Melvin, the three employees identified by the Respondent, but also
at unit employee Dorgan. As previously stated here, Pedroso coer-
cively interrogated Dorgan in his August 28 exit interview.
19 We observe that the court in Somerset Welding also noted its
unwillingness to enforce the Board’s bargaining order remedy was
based, in part, on its determination that the unlawful supervisor
statements standing alone did not constitute sufficient evidence of
pervasiveness. In this regard, the court observed that the administra-
tive law judge had found that the supervisor statements at issue es-
sentially rubber-stamped remarks by the company chairman, the le-
gality of which the Board had found it unnecessary to pass on. Here,
unlike the situation in Somerset, the bargaining order is premised on
the swift and consistent, antiunion actions of the Respondent’s owner
and president, in particular, the unlawful discharge of Dorgan. With-
out question, Pedroso’s unlawful conduct, given its source, would
have considerable pervasive effect on employees.
was pretextual. Because the Respondent does not assert
any business reason other than the one found to be
pretextual, we find that the Respondent has not met its
Wright Line burden. Accordingly, we adopt the judge’s
8(a)(3) and (1) findings pertaining to Dorgan’s dis-
charge.
2. We agree with the judge that a bargaining order
to remedy the Respondent’s misconduct is necessary
and warranted under NLRB v. Gissel Packing Co., 395
U.S. 575 (1969). We also are convinced that the Re-
spondent’s misconduct involves the type of severe and
pervasive coercion that has lingering effects and that is
not readily dispelled by time. The participation of the
Respondent’s top management ‘‘show[s] that it is
deeply committed to its anti-union position, a commit-
ment from which it is not likely to retreat.’’15 The
continuing presence of Pedroso as the Respondent’s
co-owner and president ‘‘can serve only to reinforce in
the minds of the employees the lingering effects of the
Respondent’s violations.’’16 We further agree that an
election would not reliably reflect genuine, uncoerced
employee sentiment.17
The many unfair labor practices attributed to the Re-
spondent’s top management occurred within a short
timespan, quickly after the Respondent had learned of
the union organizing. In fact, Dorgan’s discharge stra-
tegically came within only a few days after the filing
of the Union’s representation petition. The Respond-
ent’s unlawful conduct, by its onsite owner, encom-
passed a wide range of activity, including coercive in-
terrogation, threats of discharge and plant closure,
promise of benefits, and the summary discharge of the
leading union adherent. Four employees, approximately
20 percent of a small bargaining unit, were direct tar-
gets of this illegal conduct.18 But, more importantly,
Pedroso’s orchestrated discharge of Dorgan, who had
attended all the union meetings and had solicited his
coworkers to sign union authorization cards, sent a re-
sounding message of demonstrated union animosity to
the entire bargaining unit. This message by the man-
agement official in charge of the Respondent’s daily
operations necessarily carries great weight among the
employees. Finally, even after Dorgan’s discharge,
Pedroso still exhibited concern about Dorgan’s union
activity and influence among the unit employees, as
shown by his unlawful interrogation of employee Mel-
vin.
In challenging the appropriateness of a remedial bar-
gaining order, the Respondent argues that the judge
failed to consider ‘‘employee turnover’’ in the unit. In
support of this argument, the Respondent relies on
Avecor, Inc. v. NLRB, 931 F.2d 924 (D.C. Cir. 1991),
and Somerset Welding & Steel v. NLRB, 987 F.2d 777
(D.C. Cir. 1993), where, in each instance, the court de-
nied enforcement of the Board’s bargaining order rem-
edy. However, in making this argument, the Respond-
ent does not allege that the composition of the unit has
considerably fluctuated or changed since the commis-
sion of the unfair labor practices. On the contrary, the
record shows, and the Respondent does not contend
otherwise, that at least 90 percent of the unit employ-
ees working in 1992 are currently employed by the Re-
spondent. Rather, the Respondent’s defense emanates
from the termination of employment of unit employees
Cruso and Kelling.
We find no merit in its ‘‘employee turnover’’ argu-
ment and consider its reliance on Avecor and Somerset
Welding to be misplaced. In Avecor, the court in-
structed the Board to consider employee turnover
where the employer had contended that the bargaining
unit had changed considerably as a result of growth
and turnover and had supplied evidence indicating that
only about 50 percent of its current employees were
working at the earlier critical time. In Somerset Weld-
ing, 75 percent of the current employees continued to
work at the company after the critical election period.
We stress that, here, 90 percent of the unit, subjected
to the Respondent’s unlawful response to employees’
union organizing, is still in place today.19
Accordingly, we find that the employees’ desires for
union representation, as reflected by their signed union
authorization cards, would, on balance, be better pro-
tected by a bargaining order than by traditional rem-
edies.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, T&J Container Systems,
Inc., d/b/a T&J Trucking Co., Johnston, Rhode Island,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
774 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Don C. Firenze, Esq., for the General Counsel.
Thomas J. McAndrew, Esq., for the Respondent.
Manuel F. Sousa, Esq., for the Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges and amended charges were filed by the
Union in the above-proceedings on October 8 and 26, No-
vember 18, and December 30, 1992. A consolidated com-
plaint issued on January 28, 1993. The complaint was later
amended at the hearing. The General Counsel alleged in the
consolidated complaint that Respondent Employer, in oppos-
ing the Union’s attempt to represent its employees, violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by coercively interrogating employees about employee union
activities; threatening employees with discharge and closure
of its business if they would not permit the Union to come
in and thus it would be futile for them to select the Union
as their bargaining representative; creating an impression
among its employees that their union activities were under
surveillance; promising employees benefits for not supporting
the Union; and discharging employee Robert K. Dorgan be-
cause of his union and protected concerted activities. The
General Counsel further alleged that, in view of the nature
of the Employer’s unfair labor practices, a bargaining order
is an appropriate remedy in this case. Respondent Employer
denied in its answer violating the Act and that a bargaining
order should issue.
A hearing was held on the issues raised on May 3 and 4,
1993, in Providence, Rhode Island, and, on the entire record,
including my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
Respondent Employer collects and disposes of commercial
trash and is admittedly an employer engaged in commerce as
alleged. Charging Party Union is admittedly a labor organiza-
tion as alleged. On August 21, 1992, the Union filed a peti-
tion with the Board seeking to represent a unit of the Em-
ployer’s truckdrivers, equipment operators and mechanics.
On September 8, the Union and the Employer executed a
stipulated election agreement which was later approved by
the Board’s Regional Director. The appropriate bargaining
unit, as stipulated, includes:
All truckdrivers, equipment operators and mechanics
employed by the Employer at its 2129 Plainsfield Pike,
Johnston, Rhode Island facility, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
See Joint Exhibits 1(a), 1(b), and 1(c) and the General Coun-
sel’s Exhibit 4.
The evidence pertaining to the Employer’s response to the
Union’s attempt to represent its employees and the related
contentions of the parties is summarized below.
Robert K. Dorgan (Dorgan) testified that he was hired by
the Employer in 1991 as a laborer. About 1 month later, he
became a driver. His father, Robert J. Dorgan (Dorgan Sr.),
was the Employer’s general manager, and Antonio Pedroso
was co-owner of the business. Dorgan recalled that during
late July 1992, he and Pedroso had the following conversa-
tion ‘‘in [Pedroso’s] office’’:
He [Pedroso] told me [Dorgan] he had received a
call that I cut someone off driving, and I asked him
what he meant by that. He told me he’d do the talking
and I wasn’t allowed to inquire as to what he exactly
meant by that. Then he further alluded to the fact that
he didn’t like my hair the way it was and told me if
I didn’t get it cut I would no longer work there . . . .
I told him I wanted my job so I’d cut my hair, but I
tried to bargain with him exactly how I could have my
hair . . . and I wasn’t allowed to bargain. . . . I asked
him for a day to make an appointment with a hair de-
signer and he wouldn’t give it to me. He said you can-
not come back, appointment or not, unless your hair is
cut.
Dorgan had his mother cut his hair, and he returned to work
a few days later.
Shortly thereafter, during early August 1992, Dorgan, as
he further testified, went to the Union and enlisted its assist-
ance ‘‘to organize the employees at T&J.’’ He was given
union ‘‘authorization cards to get signed.’’ He attended a
union meeting on August 11. He identified the cards signed
by unit employees Jeffrey Greene on August 8; Paul Estrella
on August 11; Richard Manco on August 11; Joseph Cruso
on August 11; Steven Zawadowicz on August 11; Eric
Kelling on August 11; Kevin Nicholson on August 11; Rob-
ert K. Dorgan on August 11; Nicholas Quintavallo on August
13; Walter Grover on August 19; Frank Gentile on August
11; and William Melvin on September 1. (See G.C. Exhs.
2(a)–(l).)
On August 28, 1992, Dorgan, as he recalled, was assigned
to drive truck 31. This truck had ‘‘a non-functional’’ speed-
ometer; ‘‘it never functioned in [his] experience’’; and the
truck’s ‘‘highest speed’’ was only about 45 miles per hour.
He was instructed ‘‘to go from [the] shop in Johnston to
Jamestown, Rhode Island and pick up a container of trash.’’
After arriving at Jamestown, he was notified by his father
‘‘to come directly to the shop.’’ Upon his return to the
‘‘shop,’’ he had the following conversation with Pedroso:
He [Pedroso] asked me [Dorgan] if I knew anything
about union activity in the shop. I said I didn’t know
anything. He said he had an idea that I was running it.
I still said I didn’t know anything about it. Then he al-
luded to the idea that I had a bad attitude toward his
general manager, being my father. I asked him what he
meant by that. He didn’t give me an answer . . . . He
told me he was going to terminate me for my mis-
conduct, my attitude toward his general manager, and
. . . told me to punch out and leave.
On cross-examination, Dorgan acknowledged that pre-
viously, about February 29, 1992, while driving a truck for
the Employer, he was involved in an accident resulting in the
death of a person in another vehicle. He was not charged
with a violation of the law or disciplined by the Employer
for this accident. Later, about April 20, he had another acci-
dent at an intersection for which he was given ‘‘a ticket’’ for
‘‘going through a yield sign.’’ This charged violation is
775T&J TRUCKING CO.
1 On cross-examination, Cruso acknowledged filing an unfair labor
practice charge against the Employer as a result of his October ‘‘dis-
charge’’ and this charge was later ‘‘dismissed.’’ He also acknowl-
edged that Everett Melvin spent ‘‘maybe two to three hours in the
office’’ during the workday; worked with the mechanics ‘‘better than
half of the workday’’; and wore a shirt that said ‘‘foreman’’ on it.
In addition, Steven Zawadowicz testified that he has been em-
ployed by the Employer for about 6 years as a truckdriver; that he
had been informed by management that Everett Melvin was a ‘‘fore-
man’’ or ‘‘supervisor’’; that during August 1992 Everett Melvin
‘‘discharged’’ him; that 2 or 3 days later Dorgan Sr. telephoned him
to come back to work explaining that his ‘‘discharge’’ was a ‘‘mis-
take’’; and that he in fact returned to work a few weeks later. See
also the testimony of Dorgan pertaining to the supervisory status of
Everett Melvin. [Tr. 50–54.]
2 Kelling was ‘‘fired’’ during early September 1992. Everett Mel-
vin told Kelling that he was ‘‘discharged.’’ Everett Melvin ‘‘told me
[Kelling] grab my tool box and my shit and leave, you’re fired.’’
Kelling was thereafter recalled Dorgan Sr. who explained to the em-
ployee that Pedroso ‘‘wanted’’ him ‘‘back.’’ In addition, Kelling
noted that Everett Melvin would give him his ‘‘work assignments’’;
‘‘most of the time [Everett] Melvin was my boss and gave me what
to do.’’ Kelling also noted that, with respect to truck 31, it was
‘‘old’’ and ‘‘probably didn’t get over 35 miles an hour’’ when he
had observed the vehicle. On cross-examination, Kelling acknowl-
edged that Everett Melvin ‘‘spent most of his time in the garage
doing work around the trucks and things . . . .’’ He also recalled
Continued
‘‘currently in litigation.’’ (See R. Exh. 2.) Management did
not ‘‘confront’’ him or ‘‘talk’’ to him about this April 20 ac-
cident. Later, in July, as noted above, he was told by Pedroso
that ‘‘he [Pedroso] had received a call that I [Dorgan] had
cut somebody off, but that was the extent of it.’’ Dorgan also
acknowledged having ‘‘another accident’’ about August 12.
He recalled:
I was coming off a . . . ramp from the highway,
. . . and the relay which is incorporated into the break-
ing system failed on my truck causing me to rear end
another car, the truck was put out of commission for
the same thing the day before by the department of
transportation . . . . [The Employer was informed of
the problems with the truck] that morning [and on] the
day before. [See R. Exh. 3.]
Joseph Cruso testified that he was hired by the Employer
as a welder in 1991; that he was later ‘‘fired’’ in October
1992; and that shortly prior to coworker Dorgan’s ‘‘dis-
charge,’’ he had the following conversation with Pedroso ‘‘in
the office’’:
Tony [Pedroso] . . . asked me [Cruso] how things
were going in the shop . . . and I said I didn’t like a
few things . . . . Pedroso said I had a bad attitude to-
wards the way I was working and the Company. He
mentioned . . . that I’ve said things about the Company
before, and he said he wanted to do the right thing and
have the Company run the right way, and he asked me
if I wanted to be a team player, a part of the Company.
He wanted everybody to work as a team. . . . I said
yes, I want to be a part of the team. This is where I
work and I like my job. . . . Tony said all right . . .
let past go and start a fresh slate, . . . we shook hands
and I went back to work.
Cruso recalled that on the following day he and Pedroso
had another conversation ‘‘outside the garage’’:
Tony [Pedroso] said I want to see how much of a
team player you [Cruso] are, and I said what do you
mean. And he said well I want to know what’s going
on with the Union, who started the Union, who was at
the Union meetings. I said I didn’t know. He said well
you’re not a team player. He started to walk away. I
said well what do you want to know. He said I want
to know who started the Union, and I told him who
started the Union . . . . I named Robbie Dorgan as
starting the Union, Steve Zawadowicz as going to the
meeting [and] Eric Kelling went to the meeting . . . .
[I] named the rest of the guys, . . . and Tony said . . .
there’s a kid that I do a lot for and he’s going to do
this to me [referring to Dorgan].
Later that same day, according to Cruso, Pedroso again ap-
proached Cruso at work and ‘‘asked [him] for the names
again, . . . [Cruso] named the employees . . . that went to
the meeting, . . . [Pedroso] wrote them down.’’ Cruso subse-
quently went back to Pedroso, and ‘‘[Cruso] said . . . are
you [Pedroso] going to fire these guys because if you do
they’re going to know that I said something to you about the
Union.’’ Pedroso assured Cruso that he ‘‘would take care of
that’’ and ‘‘don’t worry.’’
Cruso next testified that Everett Melvin was a ‘‘super-
visor’’ for the Employer. Everett Melvin had an office; gave
him ‘‘work assignments’’; and ‘‘sent him home early.’’
Cruso recalled reporting for work ‘‘late’’ one day because on
the prior day he had been ‘‘sent home for a day for no rea-
son at all.’’ Cruso was then called into ‘‘the office.’’ Present
were Cruso, Pedroso, Everett Melvin, and Dorgan Sr. Cruso
testified:
Tony [Pedroso] asked me if I [Cruso] was spiting
him and I said no, . . . it upset me and I didn’t like
the way things were going, . . . I work hard and it
wasn’t right. And they said I had a bad attitude again
and I should change. . . . Tony said that he would take
care of me later in time when the Union thing was all
over, to just do the right thing.1
Eric Kelling testified that he previously had worked for the
Employer as a mechanic; that prior to Dorgan’s ‘‘discharge,’’
he and Pedroso had the following conversation ‘‘in the of-
fice’’: ‘‘He [Pedroso] asked me [Kelling] about the Union
and what did I think about it. . . . I said I didn’t know
enough about it at the time.’’ Kelling recalled that later:
[E]very day I went to work and worked in his
[Pedroso’s] office, he’d question me about it in one
way or another. He asked me if I had gone to the meet-
ing . . ., or said that he knew I had gone to a Union
meeting. . . . He said it would kill the business and
then nobody would have a job. And he said that if you
think the Union is going to come in and tell me how
to run my business and pay my employees you’re f—
king crazy. . . . This was like in the course of a
week. It started off slow and then he started hitting me
with heavier things as it progressed and he found out
more about the Union coming in.2
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
how Everett Melvin ‘‘got me my job back’’ after an earlier ‘‘fir-
ing.’’
3 DiRaffael and Sylvestry, referred to above in Pedroso’s testi-
mony, did not testify.
William Melvin testified that he has been employed by the
Company for the past 3 years as a truckdriver; that he at-
tended a union meeting about September 1, 1992; and that
Pedroso later had the following conversation with him ‘‘out-
side the time clock in the garage’’:
He [Pedroso] just asked me [William Melvin] . . .
he heard that I went to [a union meeting]. He asked me
if I went to it. I said yeah. He asked me if I knew any
of the guys that were there, and I said a bunch of guys
from the Company. . . . The only name he brought up
was Robbie [Dorgan], if Robbie was there. He brought
up his name, but everybody knew Robbie was there at
all the meetings. . . . [I said] yes.
Dorgan was no longer ‘‘working’’ for the Employer at the
time of this conversation.
William Melvin also recalled getting a ‘‘speeding ticket’’
during his employment with the Company. The speedometer
on his truck ‘‘was not operating.’’ He later informed the Em-
ployer about the ‘‘speeding ticket’’ and was told by Dorgan
Sr. that ‘‘speeding tickets are your own responsibility.’’ He
was not given any ‘‘warnings about being disciplined if [he]
got further tickets.’’
Richard Manco has worked as a mechanic and truckdriver
for the Employer since August 3, 1992. Manco identified
Everett Melvin as his ‘‘boss’’; Everett Melvin was his
‘‘boss’’ ‘‘until December 1992 or January 1993.’’ Dorgan
Sr. had stated that Everett Melvin ‘‘was a boss’’ and ‘‘the
head mechanic’’ when Manco ‘‘first started there.’’ Everett
Melvin had ‘‘interviewed’’ Manco before Manco ‘‘got
hired.’’ And Tony Pedroso had told Manco that ‘‘whatever
[Everett Melvin] says he stands behind 100 percent.’’ On
cross-examination Manco recalled that Everett Melvin spends
about ‘‘half a day’’ ‘‘performing mechanic functions and du-
ties’’ and Dorgan Sr. ‘‘generally does the hiring.’’
Tony Pedroso is co-owner and president of Respondent
Company. He testified that he fired Dorgan on August 28 for
the following ‘‘reasons’’:
It was a combination from the entire year of exces-
sive accidents and reckless driving, one of them being
a fatality. And, while I [Pedroso] wasn’t around pre-
vious to July, I was aware of these accidents that he
[Dorgan] did have and so forth. But being that he was
my general manager’s son [Dorgan Sr.] I kind of let it
go out of respect for him and so forth.
[A]round July 20 this is where the problems started
to happen. We received a call, my partner [John
DiRaffael] did, from a friend . . . stating that there was
a driver driving wild down the road. All he knew was
what the truck number was . . . . So I told my partner
DiRaffael [who] proceeded to tell [Dorgan Sr.] that he
better talk to his son because of the previous accidents
and so forth. Talk to your son; it’s got to stop . . . .
Within two days my father-in-law, Mr. Sylvestry, was
speaking to John [DiRaffael] [and] said there was a guy
driving, speeding recklessly down the road, . . . he
spotted the truck number [and] told John [DiRaffael].
. . . John blew up. He [John DiRaffael] said, Bob
[Dorgan Sr.], you’re going to have to fire your son,
[and] Bob fired his son.
The next day, John [DiRaffael] and I noticed that the
father [Dorgan Sr.] was very depressed and down and
so forth. We talked with each other about [Dorgan]
[and] we decided let’s give him another chance. . . . I
told my partner, tell Bob [Dorgan Sr.] to have [his] son
come in . . . . So, Dorgan came in. I said . . . your
father is a good man for me here. He cares about you.
I want you to know that only out of respect for your
father are you getting another chance. I’m giving you
one last chance. Okay, stop the speeding . . . stop the
recklessness. Pay attention to what you are doing . . . .
[A]nother thing, . . . I says, . . . your hair it looks to-
tally ridiculous . . . you look like you just came off an
Indian reservation with that tomahawk haircut. You’re
representing my Company and I don’t think that’s a
reasonable haircut. His [Dorgan’s] response was, I want
to thank you very much for this opportunity . . . I ap-
preciate it . . . and the problem wouldn’t happen
[again] . . . and I will take care of my hair . . . . Con-
sequently, he . . . showed up Monday because his
mom cut his hair on Sunday. . . . . [E]verything was
fine basically from then on . . . . Then [on August 28]
I received a call from my sales manager [Edward
Scanlan]. He said . . . this kid Dorgan . . . he’s speed-
ing . . . driving recklessly . . . . Somebody had to
stop the kid before someone else gets hurt. . . . I im-
mediately told [Dorgan Sr.] call your son in now. . . .
He was here within the hour. His dad sent him to my
office. I informed him . . . I can longer tolerate your
driving habits. I’m going to have to let you go. His re-
sponse was, we’ll see.’’3
Pedroso claimed that Scanlan had related to him on August
28 that Dorgan was driving a Company truck ‘‘around 70’’
miles per hour. Pedroso acknowledged, however, that ‘‘truck
31 I don’t believe would go that fast ’’; the ‘‘maximum
speed’’ of truck 31 ‘‘as of today’’ is ‘‘54’’ miles per hour.
Pedroso then claimed that he ‘‘did not know’’ that Dorgan
was in fact driving truck 31 prior to firing him and he admit-
tedly made no ‘‘further inquiry.’’ Pedroso also claimed that
on August 28 he ‘‘had no idea of which employees were in
favor of the Union.’’ Pedroso elsewhere acknowledged stat-
ing in a prehearing affidavit that:
Joseph Cruso [had] said that he was on my side.
Heknew that certain people signed cards. He mentioned
a few people that signed cards for the Union. I don’t
recall what names he gave me. He also told me that
they were having Union meetings.
Pedroso admitted that Cruso in fact had ‘‘indicat[ed] that
Dorgan had a leadership role in the Union drive in that con-
versation.’’ Pedroso also admitted that the above ‘‘conversa-
tion’’ ‘‘was within a few days of [an earlier] conversation
[with Cruso] about how [Cruso] could get a raise,’’ which
777T&J TRUCKING CO.
4 Pedroso also claimed that prior to September 1992 Everett Mel-
vin ‘‘was replaced with someone [Roger Bessell] in a supervisory
position’’ and thus ‘‘[Everett Melvin] became a [unit] driver’’ ‘‘enti-
tled to vote’’ in the representation election. Everett Melvin’s hourly
rate of pay, which was substantially higher than the hourly rate of
pay for rank-and-file employees, did not change by this claimed
transition from ‘‘working foreman’’ to ‘‘driver.’’ Pedroso denied that
Everett Melvin exercised various indicia of supervisory status during
the pertinent time period. Elsewhere, counsel for General Counsel
and the Employer stipulated that Everett Melvin ‘‘remained a work-
ing foreman . . . in September.’’ (See Tr. 340–341.)
In addition, Pedroso claimed that Zawadowicz was ‘‘unjustly
fired’’ by Everett Melvin ‘‘in August 1992’’ and Everett Melvin
‘‘didn’t have authority to do it.’’ Pedroso assertedly spoke to
Zawadowicz ‘‘a couple of weeks later or something like that’’ and
Zawadowicz then ‘‘took time off’’ that ‘‘was not approved by the
Company.’’ Pedroso assertedly ‘‘didn’t really know if [Zawadowicz]
was really going to come back to work.’’ Pedroso admittedly ‘‘took
back [Zawadowicz] when he [later] showed up.’’
5 With respect to employee Kelling, Pedroso claimed, inter alia,
that Kelling ‘‘would initiate the conversation to see what he could
find out from me’’ and did not ‘‘tell . . . who was involved with
the labor organization.’’ With respect to employee William Melvin,
Pedroso admitted that this employee had told him ‘‘that he had gone
to a Union meeting’’ but ‘‘I don’t say anything.’’
conversation, according to the affidavit, was ‘‘around the end
of August.’’ (See G.C. Exh. 3.)4
Pedroso asserted that he first became aware of the Union’s
organizational drive on August 26 when he received a copy
of the representation petition filed with the Board. He testi-
fied:
Q. Did you have any conversations with any of your
employees . . . between August 26 and August 28?
A. As far as I’m concerned I was too busy trying to
obtain what I needed to handle the situation. . . . As
far as I’m concerned, no, I did not have any conversa-
tions.
Pedroso claimed that he spoke to Cruso after Dorgan’s fir-
ing; ‘‘[Cruso] said he would like to make more money’’ and
‘‘he felt Roger Bessell was picking on him.’’ Pedroso denied
that Cruso said anything to him about the Union. Pedroso
also claimed that Cruso came to him later with similar com-
plaints. Again, nothing was said about the Union. Pedroso
next claimed that ‘‘a couple of days later’’ Cruso
started to tell me about the Union situation and having
meetings and that he wanted me to know that he
doesn’t want it and he knows who signed the cards.
And he mentioned the two names, as I said, Wally and
Jeff and Dorgan and a couple of others. I said . . .
thank you . . . for the information . . . and that was
it.
Pedroso next claimed that
[A]t the end of that same day [Cruso] . . . said to me,
are you going to let the other guys know that I told you
all this here, . . . [and] I said . . . don’t worry about
it.
Pedroso denied, inter alia, various coercive statements and
conduct attributed to him as recited above.5
Edward Scanlan is the Employer’s sales manager. He testi-
fied that on August 28 he observed Dorgan driving a com-
pany truck ‘‘weaving from lane to lane . . . [with] brake
lights coming on as [Dorgan] tried to get in between cars.’’
Scanlan promptly reported to Pedroso that Dorgan was in
fact then driving about 65 miles per hour ‘‘speeding’’ ‘‘reck-
lessly’’ ‘‘weaving in and out’’ ‘‘making us look like retards
out there.’’ Scanlan, when asked ‘‘did you actually form a
judgement as to how fast [Dorgan] was going,’’ responded:
‘‘I tried I’m not an expert at it.’’ He later added: ‘‘I figured
[Dorgan] was going faster than he should have.’’ He also ac-
knowledged that the speed of his own vehicle at the time
was about 63 to 65 miles per hour because he was ‘‘speeding
up to catch’’ Dorgan about ‘‘150 yards’’ away. He then
claimed that the speed limit in the area was 50 miles per
hour. He later acknowledged that the posted speed limit in
the area was 55 miles per hour.
Scanlan claimed that he had observed Dorgan ‘‘drive reck-
lessly prior to August 28.’’ He claimed that Dorgan drove
‘‘in the yard with the boom up shifting through the yard in
three or four gears’’; ‘‘there was an incident in July on the
Newport bridge’’; and ‘‘it was everyday’’ ‘‘in the yard.’’
Scanlan assertedly reported the above incidents to Dorgan Sr.
‘‘every time I saw something, five or six times, . . . it could
have been ten times, . . . I didn’t . . . mark it down.’’ Dor-
gan Sr. assertedly told Scanlan that he ‘‘would take care of
it’’ but he did ‘‘not take care of it.’’ Scanlan acknowledged
that none of these incidents were ‘‘written up.’’ Scanlan also
claimed that Dorgan ‘‘should have been fired long before’’
‘‘maybe four to six weeks after he started’’ working for the
Company.
Robert J. Dorgan Sr. testified that he is general manager
for the Employer. Dorgan Sr. assertedly had received some
‘‘six’’ or ‘‘eight’’ ‘‘complaints’’ concerning his son’s ‘‘reck-
less driving’’ as of July 1992, including the ‘‘complaint’’
from Sales Manager Scanlan pertaining to ‘‘speeding on the
Jamestown bridge.’’ These ‘‘complaints’’ ‘‘cover’’ a ‘‘four
or five month period.’’ Dorgan Sr. later told his son that
‘‘the instances of speeding and reckless driving have got to
stop.’’ There are, however, no records of the ‘‘complaints’’
or action taken by Dorgan Sr. In addition, Dorgan Sr. was
‘‘aware’’ that his son was involved in a fatal accident during
February 1992 and ‘‘another accident’’ in April 1992 and
‘‘another incident’’ in July 1992.
Dorgan Sr. claimed that he in fact had ‘‘fired’’ his son on
instructions from Co-owner DiRaffael in July 1992. Dorgan
Sr. assertedly had not ‘‘fired’’ his son earlier because he was
‘‘not doing a good job as a manager.’’ According to counsel
for the Employer (Tr. 353), young Dorgan ‘‘was out of work
but one day after he was fired’’ whereupon he promptly re-
sumed his truckdriving duties. And, counsel for the Em-
ployer acknowledged that neither young Dorgan’s timecard
nor any other company record ‘‘documents the firing’’ (Tr.
355.) Upper management then decided to recall young Dor-
gan assertedly because his father became ‘‘extremely de-
pressed.’’ Dorgan Sr. testified:
[His son] was given an opportunity to get his job back
. . . . [I]t was suggested that he get a haircut and look
like a regular person . . . [and] keep his speed down,
act in a responsible manner and do the same as most
of the other guys do . . . [or] probably get fired.
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Counsel stipulated that as of September 4, 1992, the stipulated
bargaining unit included the following employees:
1. David Barrett 11. William Melvin
2. Paul Carnevale 12. Kevin Nicholson
3. John Cornell 13. Nicholas Quintavallo
4. Paul Estrella 14. Robert or Roger Bessell
5. Frank Gentile 15. Rui Duarte
6. Daniel Goodsoe 16. Richard Manco
7. Jeffrey Greene 17. Joseph Cruso
8. Walter Grover 18. Edward Scanlan III
9. Edward Melvin 19. Eric Kelling
10. Ken Melvin
Counsel further stipulated that Robert K. Dorgan would also be in-
cluded in this unit as of September 4 ‘‘if he were discriminatorily
discharged’’ and that Everett Melvin would also be in this unit if
not found to be a ‘‘supervisor’’ as alleged by counsel for the Gen-
eral Counsel. In addition, counsel for the General Counsel claimed
that Steven Zawadowicz should also be included in this unit because
he was employed on September 4. Counsel for the Employer gen-
erally asserted that Zawadowicz ‘‘was not on the payroll at that
point in time and we did not know whether [he] was going to come
back to work.’’
Dorgan Sr. next recalled that his son was involved on August
12 in ‘‘another accident.’’ However, he characterized this ac-
cident as ‘‘probably a non-preventable accident’’ because
‘‘the brake springs on one of the cams let go’’ and, con-
sequently, ‘‘nothing was done’’ to his son.
In addition, Dorgan Sr. denied, inter alia, that Everett Mel-
vin possessed various indicia of supervisory status and was
instead ‘‘an hourly paid employee’’ who spent ‘‘probably
about 80 percent’’ of his time ‘‘working as a mechanic or
working in the garage.’’ Dorgan Sr. claimed that Everett
Melvin did not ‘‘have the authority to fire’’ Zawadowicz and
Dorgan Sr. later notified Zawadowicz, after being instructed
by Pedroso, that ‘‘Mel didn’t have the authority to terminate
him’’ and Pedroso ‘‘wanted to see him.’’ Zawadowicz re-
turned to work ‘‘eventually’’ after taking a ‘‘vacation’’ or
‘‘some time off.’’6
I credit the testimony of Robert K. Dorgan, Joseph Cruso,
Steven Zawadowicz, Eric Kelling, William Melvin, and
Richard Manco as recited above. Their testimony is in sig-
nificant part mutually corroborative of the Employer’s con-
duct in response to the employees’ attempt to obtain Union
representation. Their testimony is also substantiated in sig-
nificant part by admissions of Respondent Employer’s wit-
nesses. And, on this full record, I am persuaded that their
testimony represents a complete and reliable account of the
pertinent sequence of events. On the other hand, I do not
credit the testimony Tony Pedroso, Edward Scanlan, and
Robert J. Dorgan insofar as their testimony conflicts with the
testimony of the above witnesses. The testimony of Tony
Pedroso, Edward Scanlan, and Robert J. Dorgan was at times
incomplete, unclear, vague, evasive, shifting, and contradic-
tory. They did not impress me as trustworthy or reliable wit-
nesses. In sum, as discussed below, I find and conclude here
that the Employer, in response to the employees’ attempt to
obtain union representation, engaged in the coercive conduct
credibly related by the employee witnesses, and discharged
Robert K. Dorgan because he was chiefly instrumental in ob-
taining union assistance and initiating the organizational
drive. As for the Employer’s assertions to the effect that
Dorgan was discharged because of his cited driving record,
I do not credit and reject these belated and shifting claims
as pretextual. The Employer was apparently willing to toler-
ate Dorgan’s cited driving record until he became chiefly in-
strumental in obtaining union assistance and initiating the or-
ganizational drive. Dorgan was summarily discharged on Au-
gust 28 because he had brought the Union to the Employer’s
facility.
Discussion
Section 7 of the National Labor Relations Act guarantees
employees the ‘‘right to self-organization, to form, join or as-
sist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as the right ‘‘to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice for an employer ‘‘to
interfere with, restrain or coerce employees in the exercise
of’’ their Section 7 rights. Section 8(a)(3) forbids ‘‘discrimi-
nation in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage
membership in any labor organization.’’
An employer, under settled principles of labor law, vio-
lates Section 8(a)(1) of the Act by coercively interrogating
employees about employee union activities; threatening em-
ployees with discharge and closure of its business if they se-
lect a union as their bargaining representative; telling em-
ployees that it would not permit a union to come in and thus
it would be futile for them to select a union as their bargain-
ing representative; creating an impression among its employ-
ees that their union activities are under surveillance; and
promising employees benefits for not supporting a union. An
employer, under equally settled principles of labor law, vio-
lates Section 8(a)(1) and (3) of the Act by discharging an
employee because of his union and other protected concerted
activities. See Yerger Trucking, 307 NLRB 567 (1992);
Cumberland Farms, 307 NLRB 1479 (1992); Pennsy Supply,
295 NLRB 324 (1989); Southwire Co., 277 NLRB 377
(1985); Migali Industries, 285 NLRB 820 (1987); Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
In the instant case, during early August 1992, as employee
Dorgan credibly testified, Dorgan went to the Union and en-
listed its assistance ‘‘to organize the employees at T&J.’’ He
was given union ‘‘authorization cards to get signed.’’ He at-
tended a union meeting on August 11. He obtained the signa-
tures of 12 unit employees on union ‘‘authorization cards.’’
And, on August 21, the Union filed a petition with the Board
seeking to represent a unit of the Employer’s truckdrivers,
equipment operators, and mechanics. The Employer re-
sponded with the following coercive conduct in an attempt
to defeat this organizational effort.
Employee Cruso credibly testified that shortly prior to co-
worker Dorgan’s ‘‘discharge’’ on August 28, Pedroso, co-
owner of Respondent, had the following conversation with
him ‘‘outside the garage’’:
Tony [Pedroso] said I want to see how much of a
team player you [Cruso] are, and I said what do you
mean. And he said well I want to know what’s going
on with the Union, who started the Union, who was at
the Union meetings. I said I didn’t know. He said well
you’re not a team player. He started to walk away. I
said well what do you want to know. He said I want
779T&J TRUCKING CO.
7 In addition, on this record, I reject the assertion that Dorgan
would have in any event been discharged for lawful nondiscrim-
inatory reasons. As noted, the Employer was apparently willing to
tolerate Dorgan’s cited driving record as well as one or more of its
trucks operating without functional speedometers and operational
brakes. This record does not support the assertion that the Employer
would have fired Dorgan on or about August 28 for lawful non-
discriminatory reasons.
to know who started the Union and I told him who
started the Union . . . . I named Robbie Dorgan as
starting the Union, Steve Zawadowicz as going to the
meeting [and] Eric Kelling went to the meeting. . . .
[I] named the rest of the guys, . . . and Tony said . . .
there’s a kid that I do a lot for and he’s going to do
this to me [referring to Dorgan].
Pedroso again approached Cruso at work that same day and
‘‘asked [him] for the names again, . . . [Cruso] named the
employees . . . that went to the meeting, . . . [Pedroso]
wrote them down.’’ Cruso subsequently inquired, ‘‘[A]re you
[Pedroso] going to fire these guys because if you do they’re
going to know that I said something to you about the
Union.’’ Pedroso assured Cruso that he ‘‘would take care of
that’’ and ‘‘don’t worry.’’ And, in addition, Pedroso later as-
sured Cruso that ‘‘he would take care of [Cruso] later in time
when the Union thing was all over, to just do the right
thing.’’
Employee Kelling credibly testified that prior to Dorgan’s
‘‘discharge,’’ he and Pedroso had the following conversation
‘‘in the office’’: ‘‘He [Pedroso] asked me [Kelling] about the
Union and what did I think about it. . . . I said I didn’t
know enough about it at the time.’’
Kelling credibly recalled that later,
. . . every day I went to work and worked in his
[Pedroso’s] office, he’d question me about it in one
way or another. He asked me if I had gone to the meet-
ing . . . or said that he knew I had gone to a Union
meeting. . . . He said it would kill the business and
then nobody would have a job. And he said that if you
think the Union is going to come in and tell me how
to run my business and pay my employees you’re f—
king crazy.
In like vein, employee William Melvin credibly testified
that Pedroso had the following conversation with him ‘‘out-
side the time clock in the garage’’:
[Pedroso] just asked me [William Melvin] . . he heard
that I went to [a union meeting]. He asked me if I went
to it. I said yeah. He asked me if I knew any of the
guys that were there, and I said a bunch of guys from
the Company. . . . The only name he brought up was
Robbie [Dorgan], if Robbie was there. He brought up
his name, but everybody knew Robbie was there at all
the meetings . . . . [I said] yes.
And, finally, on August 28, Dorgan, as he credibly re-
called, was assigned to drive truck 31. This truck had ‘‘a
non-functional’’ speedometer; ‘‘it never functioned in [his]
experience’’; and the truck’s ‘‘highest speed’’ was only
about 45 miles per hour. He was instructed ‘‘to go from [the]
shop in Johnston to Jamestown, Rhode Island and pick up
a container of trash.’’ After arriving at Jamestown, he was
notified by his father ‘‘to come directly to the shop.’’ Upon
his return to the ‘‘shop,’’ he had the following conversation
with Pedroso:
He [Pedroso] asked me [Dorgan] if I knew anything
about Union activity in the shop. I said I didn’t know
anything. He said he had an idea that I was running it.
I still said I didn’t know anything about it. Then he al-
luded to the idea that I had a bad attitude toward his
general manager, being my father. I asked him what he
meant by that. He didn’t give me an answer . . . . He
told me he was going to terminate me for my mis-
conduct, my attitude toward his general manager, and
. . . told me to punch out and leave.
I find and conclude that the above credited evidence of
record clearly establishes that Respondent Employer, in an
attempt to defeat its employees’ organizational effort, vio-
lated Section 8(a)(1) of the Act by coercively interrogating
employees about employee union activities; threatening an
employee with discharge and closure of its business if the
employees select the Union as their bargaining representa-
tive; telling an employee that it would not permit the Union
to come in and thus it would be futile for the employees to
select the Union as their bargaining representative; creating
an impression that employee union activities were under sur-
veillance; and promising an employee benefits for not sup-
porting the Union.
In addition, I find and conclude that the above credited
evidence of record clearly establishes that the Employer dis-
charged employee Dorgan on August 28 because the Em-
ployer had been informed that Dorgan was chiefly respon-
sible for the union campaign. I do not credit and reject as
pretextual the Employer’s assertions to the effect that Dorgan
was discharged because of his cited driving record. Pedroso’s
own testimony shows that the Employer was willing in the
past to tolerate this cited driving record as well as one or
more of its trucks operating without working speedometers
and operational brakes. Indeed, when Pedroso assertedly
called Dorgan in during July to complain about the employ-
ee’s driving record and give him one more chance, Pedroso
was apparently more concerned about Dorgan’s haircut than
what steps could be taken to improve the safety record of the
Employer’s employees and its equipment. Significantly, al-
though Dorgan was involved in a later accident in August,
the Employer apparently took no real steps to assure itself
that Dorgan was not at fault. It was not until August 28,
shortly after the Employer had discovered through its coer-
cive interrogations and related conduct that Dorgan was the
employee responsible for the Union’s drive, when it decided
to summarily fire him. In sum, Dorgan was fired because of
his Union and protected concerted activities, in violation of
Section 8(a)(1) and (3) of the Act.7
CONCLUSIONS OF LAW
1. Respondent Employer is engaged in commerce and
Charging Party Union is a labor organization as alleged.
2. Respondent Employer violated Section 8(a)(1) of the
Act by coercively interrogating employees about employee
union activities; threatening an employee with discharge and
closure of its business if the employees select the Union as
their bargaining representative; telling an employee that it
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would not permit the Union to come in and thus it would
be futile for the employees to select the Union as their bar-
gaining representative; creating an impression that employee
union activities were under surveillance; and promising an
employee benefits for not supporting the Union.
3. Respondent Employer violated Section 8(a)(1) and (3)
of the Act by discriminatorily discharging employee Dorgan
because of his union and protected concerted activities.
4. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such conduct and, for the reasons explained
below, in any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights,
and to post the attached notice. Respondent Employer, hav-
ing violated Section 8(a)(1) and (3) of the Act by discrim-
inatorily discharging employee Robert K. Dorgan, will be di-
rected to offer to the discriminatorily discharged employee
immediate and full reinstatement to his former job or, in the
event his former job no longer exists, to a substantially
equivalent job, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of his discrimina-
tory discharge, by making payment to him of a sum of
money equal to that which he normally would have earned
from the date of Respondent Employer’s discriminatory con-
duct to the date of its offer of reinstatement, less net earnings
during such period, with backpay to be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 651 (1977), and
interest as provided in New Horizons for the Retarded, 283
NLRB 1173 (1987). See generally Isis Plumbing, 138 NLRB
716 (1962).
Respondent Employer will also be directed to preserve
and, on request, make available to the Board or its agents for
examination and copying all payroll records and reports and
all other records necessary to determine backpay and compli-
ance with this Decision and Order. Respondent Employer
will be directed to expunge from its files any references to
the discriminatory discharge of employee Dorgan and notify
the discriminatee in writing that this has been done and that
evidence of this disciplinary action will not be used as a
basis for future personnel action against him, in accordance
with Sterling Sugars, 261 NLRB 472 (1982).
The General Counsel argues that the Employer’s unfair
labor practices in the instant case are so serious and substan-
tial that the possibility of erasing their effects and conducting
a fair representation election by the use of traditional rem-
edies is slight and, consequently, a bargaining order should
issue in accordance with the principles stated by the Supreme
Court in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
For the reasons stated below, I agree.
Respondent Employer stipulated, and I find and conclude,
that the following employees constitute a unit appropriate for
purposes of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All truckdrivers, equipment operators and mechanics
employed by the Employer at its 2129 Plainsfield Pike,
Johnston, Rhode Island facility, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
The Union initiated its campaign to represent the above
unit employees during early August 1992. As of September
4, 12 of the 21 unit employees had signed clear and unam-
biguous union authorization for representation cards. (See
G.C. Exhs. 2(a)–(l).) As stipulated (see fn. 6, supra), the
above unit included the 19 named employees and discrim-
inatorily discharged employee Dorgan. The above unit also
included employee Zawadowicz. Zawadowicz credibly testi-
fied that he has been employed by the Employer for about
6 years as a truckdriver; that during August 1992 Everett
Melvin ‘‘discharged’’ him; that 2 or 3 days later Dorgan Sr.
telephoned him to come back to work explaining that his
‘‘discharge’’ was a ‘‘mistake’’; and that he in fact returned
to work a few weeks later. Zawadowicz, 1 of the 12 union
card signers, was a unit employee during the pertinent time
period. Cf. Town Concrete Pipe, 259 NLRB 1002 (1982);
and Delta Pine Plywood Co., 192 NLRB 1271 (1971).
Counsel for the Employer contends that Everett Melvin
should also be included in this unit. I reject this contention
because Everett Melvin, as argued by counsel for the General
Counsel, was a ‘‘supervisor’’ during the pertinent time pe-
riod. A ‘‘supervisor’’ is defined in Section 2(11) of Act as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Actual existence of true supervisory power is to be distin-
guished from abstract, theoretical, or rule book authority. It
is well established that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or her
with a ‘‘title and theoretical power to perform one or more
of the enumerated functions.’’ NLRB v. Southern Bleachery
& Print Works, 257 F.2d 235, 239 (4th Cir. 1958), cert. de-
nied 359 U.S. 911 (1959). What is relevant is the actual au-
thority possessed and not the conclusory assertions of wit-
nesses. And while the enumerated powers listed in Section
2(11) are to be read in the disjunctive, Section 2(11) also
‘‘states the requirement of independence of judgment in the
conjunctive with what goes before.’’ Poultry Enterprises, v.
NLRB, 216 F.2d 798, 802 (5th Cir. 1954). Thus, the individ-
ual must consistently display true independent judgment in
performing one or more of the enumerated functions in Sec-
tion 2(11) of the Act. The performance of some supervisory
tasks in a merely ‘‘routine,’’ ‘‘clerical,’’ ‘‘perfunctory,’’ or
‘‘sporadic’’ manner does not elevate a rank-and-file em-
ployee into the supervisory ranks. NLRB v. Security Guard
Service, 384 F.2d 143, 146–149 (5th Cir. 1967). The ‘‘deci-
sive question is whether [the individual involved] has found
to possess authority to use [his or her] independent judgment
with respect to the exercise [by him or her] of some one or
more of the specific authorities listed in Section 2(11) of the
Act.’’ See NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d
331, 334 (1st Cir. 1948).
781T&J TRUCKING CO.
8 Counsel for the General Counsel notes in his posthearing brief
(at 34):
Since Dorgan was unlawfully discharged on August 28 his au-
thorization card was entitled to be counted as of September 4,
thus giving the Union a card majority on that date of 11 out of
20. Accordingly, there is no need to decide whether Zawadowicz
or [Everett Melvin] were included in the unit on that date.
9 Under the circumstances, because the above-serious and egre-
gious misconduct demonstrates a general disregard for the employ-
ees’ fundamental rights, a broad cease-and-desist order is also war-
ranted here. See Interstate Truck Parts, supra.
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Applying these principles of law to the credited evidence
of record, I find and conclude that Everett Melvin was a
‘‘supervisor’’ during the pertinent time period. Thus, as re-
cited above, Everett Melvin was given an ‘‘office’’ by man-
agement; was introduced to rank-and-file employees by man-
agement as ‘‘a boss’’ and ‘‘supervisor’’; gave rank-and-file
employees their ‘‘work assignments’’ and ‘‘told them what
to do’’; sent rank-and-file employees ‘‘home early’’; notified
rank-and-files that they were ‘‘discharged’’; ‘‘interviewed’’ a
rank-and-file employee before he was ‘‘hired’’; was paid a
significantly higher hourly rate than rank-and-file employees;
and ‘‘got’’ a rank-and-file employee his ‘‘job back’’ after
being ‘‘fired.’’ In sum, Everett Melvin had the authority, in
the interest of the Employer, to, inter alia, discipline employ-
ees and responsibly direct them, and the exercise of such au-
thority was not of a merely routine or clerical nature, but re-
quired the use of independent judgment.8
Here, as in Bakers of Paris, 288 NLRB 991 (1988), ‘‘Re-
spondent’s unlawful conduct warrants the imposition of a
Gissel . . . bargaining order to protect the employees’ major-
ity selection of a bargaining representative based on author-
ization cards’’ because,
given the swiftness, severity and extensiveness of the
Respondent’s unfair labor practices . . . it [is] highly
unlikely that its employees would be willing or able to
freely express their choice in [a Board-conducted rep-
resentation election].
The Employer, in prompt response to the employees’ attempt
to obtain union representation, repeatedly and coercively in-
terrogated employees about employee union activities; threat-
ened discharge and closure of its business if the employees
select the Union as their bargaining representative; warned
that it would not permit the Union to come in and thus it
would be futile for the employees to select the Union as their
bargaining representative; repeatedly created an impression
that employee union activities were under surveillance;
promised benefits for not supporting the Union; and, finally,
summarily fired the employee chiefly responsible for the or-
ganizational effort.
The above are clearly ‘‘hallmark’’ violations of the Act
designed to defeat the employees’ attempt to obtain union
representation in a Board-conducted election. They were en-
gaged in by the Employer’s co-owner. The unit employees,
under the circumstances present here, would not be able to
readily forget the results of their attempt to obtain union rep-
resentation. As the Board recently stated in Q-1 Motor Ex-
press, 308 NLRB 1267, 1268 (1992):
We find that these 8(a)(1) and (3) violations, which
threaten the very livelihood of employees, are likely to
have a lasting impact which is not easily erased by the
mere passage of time or the Board’s usual remedies, es-
pecially given the small size of the bargaining unit and
the fact that the unfair labor practices affected each of
the employees.
See also Yerger Trucking, supra; and Interstate Truck Parts,
312 NLRB 661 (1993).9
Accordingly, I find and conclude that a bargaining order
is warranted here and September 4 is the appropriate date to
use for this remedial order because by that date, as stipu-
lated, the Union had obtained a clear majority status. See
Roadway Inn of Las Vegas, 252 NLRB 344 fn. 3 (1980), and
Q-1 Motor Express and Yerger Trucking, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, T&J Container Systems, Inc., d/b/a T&J
Trucking Co., Johnston, Rhode Island, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge and closure of
its business if the employees select Rhode Island Laborers’
District Council and its affiliated Local 1322, a/w Laborers’
International Union of North America, AFL–CIO (the Union)
as their bargaining representative; coercively interrogating
employees about employee union activities; telling employ-
ees that it would not permit the Union to come in and thus
it would be futile for the employees to select the Union as
their bargaining representative; creating an impression that
employee union activities were under surveillance; and prom-
ising employees benefits for not supporting the Union.
(b) Discriminatorily discharging its employees because
they join, support, or assist the Union or because they engage
in other protected and concerted activities.
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed to
them in Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to employee Robert K. Dorgan immediate and
full reinstatement to his former job or, in the event his
former job no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and privi-
leges, and make him whole for any loss of earnings he may
have suffered by reason of his discriminatory discharge, with
interest, as provided in the Board’s Decision.
(b) Preserve and, on 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, as well as all other records necessary and useful
in analyzing and computing the amount of backpay and com-
pliance with the Board’s Decision and Order.
(c) Expunge from its files any references to the discrimina-
tory discharge of employee Dorgan and notify him in writing
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
that this has been done and that evidence of this unlawful
disciplinary action will not be used as a basis for future per-
sonnel action against him.
(d) On request, bargain in good faith with the Union as
the exclusive bargaining agent of its employees in the appro-
priate unit described below and if an understanding is
reached embody that understanding in a signed agreement.
The appropriate bargaining unit is as follows:
All truckdrivers, equipment operators and mechanics
employed by the Employer at its 2129 Plainsfield Pike,
Johnston, Rhode Island facility, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
(e) Post at its facilities copies of the attached notice
marked ‘‘Appendix.’’11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 1, after being
signed by the Respondent Employer’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date this Order what steps the Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with discharge and
closure of our business if the employees select Rhode Island
Laborers’ District Council and its affiliated Local 1322, a/w
Laborers’ International Union of North America, AFL–CIO,
the Union, as their bargaining representative; coercively in-
terrogate our employees about employee union activities; tell
our employees that we would not permit the Union to come
in and thus it would be futile for the employees to select the
Union as their bargaining representative; create an impres-
sion that our employees’ union activities were under surveil-
lance; and promise our employees benefits for not supporting
the Union.
WE WILL NOT discriminatorily discharge our employees
because they join, support, or assist the Union or because
they engage in other protected and concerted activities.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the rights guaran-
teed to them in Section 7 of the National Labor Relations
Act.
WE WILL offer to employee Robert K. Dorgan immediate
and full reinstatement to his former job or, in the event his
former job no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and privi-
leges, and make him whole for any loss of earnings he may
have suffered by reason of his discriminatory discharge, with
interest, as provided in the Board’s Decision.
WE WILL preserve and, on 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, as well as all other records necessary
and useful in analyzing and computing the amount of back-
pay and compliance with the Board’s Decision and Order.
WE WILL expunge from our files any references to the dis-
criminatory discharge of employee Dorgan and notify him in
writing that this has been done and that evidence of this un-
lawful disciplinary action will not be used as a basis for fu-
ture personnel action against him.
WE WILL, on request, bargain in good faith with the Union
as the exclusive bargaining agent of our employees in the ap-
propriate unit described below and if an understanding is
reached embody that understanding in a signed agreement.
The appropriate bargaining unit is as follows:
All truckdrivers, equipment operators and mechanics
employed by the Employer at its 2129 Plainsfield Pike,
Johnston, Rhode Island facility, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
T&J CONTAINER SYSTEMS, INC., D/B/A T&J
TRUCKING CO.