Van Pelt Fire Trucks

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 794 (N.L.R.B. 1978)

I)9FCISIONS OF NATIONAL LABOR RELATIONS BOARI)
P. E. Van Pelt, Inc. d/b/a Van Pelt Fire Trucks and
Don Borrelli and William W. Quails. Cases 32-
CA-333 (formerly 20 CA 13291) and 32 CA 390
(formerly 20 CA 13398)
September 29, 1978
DECISION AND ORDER
BY MEMBE RS PENEI.I.(), MrURPIIY, ANI) 1TRUI SI)AII
On June 16, 1978, Administrative Law Judge Rich-
ard J. Boyce issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed
limited exceptions and brief in partial support of the
Administrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-melmber panel.
The Board has considered the record and the at-
tached Decision in light of' the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
OR[)ER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National labor Rela-
tions Board adopts as its Order the recommended Or-
der of' the Administrative law Judge and hereby or-
ders that the Respondent, P. F. Van Pelt, Inc. d/b/a
Van Pelt Fire Trucks. Oakdale, ('alifornia,. its officers,
agents, successors, and assigns, shall take action set
forth in the said recommended Order.
I Respondent has excepted to certain crtedlbili, findings made hby tilhe d
miiristattive l aw Judge It is the Board's established polics not to overrule ian
Administrati Ie l.aw Judge's resolutions with respect h) credibilit 5 unless the
clear preponderance of all of the relevalnl esidence coniinces us thait the
resolutions are incorrect. Standard Dr: Itarll Prldutvi, /I.. 91 Nl R 544
(1950), enild 188 1 2d 362 (('.A. 3. 1951), We have careiully examined the
record and find no hasis for reversing his findings We have lurther consid-
ered Respondent's covntentioin that the rulings anlid ndings ot the Adminis-
trative Law Judge are the result of hbias in Ihis pltceeding. We have carelull?
considered the record and the attached Decision and reject these charges ot
bias alleged by Respondent.
Member I ruesdale finds it unnmecessary to pass on the Administratite i ,iaw
ljudge's statement that Ruthiman is "a iikel; meliher io aims hargaininlg unit
to grow out of the union campaign.l
D)E(ISION
S I A I 'II NI ()1 111 ('ASI
RI( ARKI) J. BtO\( I. Administrative Law Judge: This con-
solidated matter was heard before me in Stockton, ('alilor-
nia, on February 22, 23, 24, and 27, 1978. T'he charge in
C('ase 32 ('A 333 xwas tiled on August 18. 1977, by Don
Borrelli. and that in ('ase 32 CA 390 on September 15 by
William W. Qualls, each acting in his individual capacity
(Borrelli and Quails). The complaint issued on November 1,
was amended on November 16 and during the hearing, and
alleges that P. t1. Van Pelt. Inc.. d/h/a Van Pelt Fire
ITrucks (Respondent) has violated Section 8(a)(I) and (3) of'
the National Labor Relations Act, as amended (Act).
The parties were permitted during the hearing to intro-
duce relevant evidence, examine and cross-examine wit-
nesses, and argue orally. Post-trial briefs were filed for the
General Counsel and for Respondent.
I. JURISI)I("I ION
Respondent is a ('alifornia corporation engaged in the
modification and repair of fire trucks at a plant in Oakdale.
C'alifbrnia. It annually purchases materials and supplies of
a value exceeding $50,000 directly from outside C('alifornia,
and has annual sales exceeding $50,000 to customers out-
side California and to cities in California.
Respondent is an employer engaged in and affecting
commerce within Section 2(2), (6). and (7) of the Act.
II. I AtBOR (R(i ANIZA I()N
Operating Engineers Local 1Union No. 3, International
Union of Operating Engineers. AFI. ('10 (Union) is an or-
ganization in which employees participate and which exists
for the purpose of representing employees in dealing with
employers concerning wages, hours. and other terms and
conditions of employment.
'The l Union is a labor organization within Section 2(5) of
the Act,
111. ISSU ES
'Ihe complaint alleges that Respondent violated Section
8(a)(I at various times in May>, June. and Jul. 1977 by
creating the impression that its employees' union activities
were under surveillance. by interrogating its emploees con-
cerning their union activities. bv threatening its employees
with discharge loi engaging in union activities. hby promis-
ing benefits to its employees to undermine their support of
the LUnion, and hb announcing and granting a general wage
increase to undermine employee support of the Union.
I'he complaint further alleges that Respondent violated
Section 8(a)(3) and (1) on August 5., 1977. by causing Bor-
relli and Quails to quit in circtiNstances amounting to con-
structive discharge because of' their union activities.
TIhe answer denies any, wrongdoing.
Ir. 1111 AlI iti tl NI AIR I AB()R PRA( ( II S
i. BaRtdr /,op
Respondent's plant nornall'l processes about 15 tire
trucks at a time. 12 undergoing modification and 3 under-
going repair. There are about 50 production employees.
spread over 11 departments. ]The steel department. w ith
abhout 15 employees, is the most populous, followed by the
assembly department. with about 8. I'he other departments
have fronm one to four employees. Each department has a
238 NLRB No. 105
794
VAN PEIT[ IFIRL TRUCKS
leadman. so called. who takes orders from Wayne Kindred.
the production supervisor. Borrelli and Quails were in the
steel department when they quit. That department's lead-
man is Darold Stewart.
It is undisputed that Kindred is a supervisor for purposes
of the Act. Others in the management hierarchy include
Barry Jett, corporate treasurer: Clayton Wilms, plant man-
ager and accountant: and Nip Dallas. corporate president.
Whether Stewart, as leadman in the steel department. is a
statutory supervisor is in dispute. the General C('ounsel con-
tending yes and Respondent no.
There have been several unsuccessful attempts over the
years to organize Respondent's production employees. IFhe
latest stirrings began in April or May 1977 and received
impetus in early June, when the Union assigned Harry Sha-
doan, a business representative, to direct the effort. Sha-
doan remained in that role for perhaps 6 weeks. Probably
the most conspicuos "landmark" in the organizational push
occurred on July 18. when Shadoan mailed identical letters
to all the employees, describing the advantages of unioniza-
tion and urging that they sign and return authorization
cards. which were enclosed.
The organizational drive had resulted in neither a recog-
nitional demand nor a petition for NLRB election to the
time of trial.
B. The .4 /Alged Independen V io/laiols /l' Section 8(a)(lJ)
1. Paragraphs 6(a). (b). (d)., and 9
Paragraph 6(a) of the complaint alleges that. on about
May 8. June 9. and June 16. 1977. Darold Stewart "created
the impression in the minds of employees that they were
under surveillance for engaging in union activities." Para-
graph 6(b) alleges that. on about June 16 and July 20. 1977.
Stewart "threatened employees with discharge if the) con-
tinued to support the Union." Paragraph 6(d) alleges that.
on about July 20, 1977, Stewart "interrogated employees
about their union activities and the union activities of other
employees." Paragraph 9 alleges that Respondent violated
Section 8(a)( I) in each instance.
The evidence. Quails testified that, somtime early in the
union campaign, he asked Stewart why Kindred was "right
behind . . . every time I go into the bathroom." and that
Stewart relied: "Probably because . . he thinks you are
such a good organizer." Stewart denied making that re-
sponse, testifying that he said: "I don't think he would fol-
low you. Bill, not to the bathroom."
Qualls also testified that, just before the 2-week vacation
shutdown from June 17 to July 5, he asked Stewart if there
were any truth to rumors that Quails and Borrelli were to
be laid oft: and that this exchange ensued:
Stewart: "No, now that this union stuff has died
down. It has. hasn't it?"
Quails: "As far as I know. What makes you think
I've got anything to do with the U nion?"
Stewart: "Well, I'm smart enough to know that
you're behind it. and so are the other guys in the ot-
ficeH"
Stewart denied Quails' version, testif ing that Quails asked
him what Kindred would do if he knew that Quails and
Borrelli were "involved in union activit\." and that he an-
swered: "He would probably can your ass." Explaining this
answer. Stewart testified:
I guess I got prejudiced feelings towards the Union,
and if a guy worked f(or me and he as not Cornompan).
I would fire him.
Qualls further testified that. the das following Shadoan's
J.ulv 18 mailing. he heard Stewart ask another employee if
he had received it. after which Stewart directed this to
Qualls: '"How about you. Qualls'? No. you wouldn't get
one: 'ou're the one who mailed them out." Quails could
not recall the identity of the other employee with certainty.
thinking it mav have been Ken Burton. Burton. called by
Respondent, denied being party to such an incident, and
Stewart denied the whole affair.
Stewart is creditied that he made the "can sour ass" re-
mark. Otherwise, to the extent that their versions conflict,
Qualls is credited that the events occurred substantially as
he related. Itis testimony was convincingls detailed and lu-
cid. and his demeanor bore conviction. whereas Stewart.
while remarkably candid about his antiunion feelings, often
was evasive and unimpressive in overall demeanor.'
Borrelli testified that, a day or two after the July 18 mail-
ing. he, too. was asked by Stewart if he had received an
"envelope" in the mail. Borrelli added that he feigned igno-
rance of Stewart's point of reference, prompting Stewart to
say, "Don't play dumb": and that he. Borrelli, eventually
said that he had not received one. but that others had.
Stewart ended the coversation, according to Borrelli, by
saying it was none of Borrelli's business after Borrelli had
asked if he had received an envelope and intended to sign
an authorization card.
Borrelli testified of a second conversation with Stewart,
later in the same week, in which Stewart said that some of
the union organizers "would be going down the road" if
they kept it up. A coworker, Charles Beckham, testified that
he "got in on the tail end of' this, and heard Stewart say
"something about the union organizers would be hitting the
road or going down the road or something to that effect."
Stewart denied both conversations of uwhich Borrelli testi-
fied. Borrelli, whose recall. demeanor. and overall sincerity
generally were of a high order, is credited for much the
same reasons that Qualls has been credited over Stewart:
and, as concerns the latter conversation, because of Beck-
ham's corroboration as well.
Stewart concedely asked another employee, Edward
G(ardner, if he had received the July 18 mailing and if he
was going to sign it union card.
As earlier noted, the parties are in disagreement over
Stewart's supervisors status. He is the ranking person in the
steel department. which, as mentioned, has about 15 em-
ployees. lie receives $7.83 per hour, as against $7.38 for the
other leadmen and $6.93 for journeymen generally. Asked
the reason for his higher wage. Stewuart testified at one point
that it was "because I do a good job." and at another: "I
have more men to work with and it causes me greater prob-
lems and frustrations," Jett. asked the same question, testi-
I Burton's denial does not invithdate this res.olullion Quails did not purport
ito make a conrclusl.e identification of him. besond which Burton's testimo-
nial demiealnor suigested a greater tealIt to Respondent than to the truth.
795
DECISIONS OF NATIONAL LABOR RELATIONS BOAR[)
flied that Stewart "has greater knowledge of the area he is
working in (than do the other leadmen]. and if mistakes are
made in there . . they are much more costly than if they
are made farther down the line."
Stewart testified that he examines production orders as
work comes into the steel department, and then "I try to
pick people" to do the work in accordance with their back-
ground doing similar tasks. As the work progresses through
the department, he continued, he "look[s] at the work to
make sure there is some quality that goes into" it. He ex-
panded that he walks "throughout the steel shop and I will
notice somebody that he has got a definite problem and I
will stop and make a suggestion as to how to correct it." He
was at pains to testify that he never gives an order-"it is a
request." In addition, the employees commonly take ques-
tions and problems to him-"a lot of silly questions," as he
put it.
Respondent would have it that Kindred. Stewart's imme-
diate supervisor, is the lowest ranking supervisor in the
plant. Kindred's responsibilities are plantwide-"anything
that pertains to the functioning of the operation of the plant
I handle." Kindred testified that he spends about 90 percent
of his time "constantly moving around" in the production
areas of the plant, of which between 45 minutes and 2 hours
daily is spent in the steel department on an "in and out"
basis.
While contending that no one beneath him has the au-
thority to make independent decisions, Kindred conceded
that Stewart has the "discretion" to assign work in the steel
department "to whoever is available or whoever he thinks
can handle it." In this regard, Kindred admitted that, un-
like Stewart, he has "no way of knowing who's going to be
coming off the other truck and ready to go again," and that
"there are a number of things in the plant that occur on a
day-to-day basis that [he] just wouldn't be in any position
to know about." Similarly, Stewart testified that he does not
go to Kindred with every problem that comes up-"I have
got a brain and I am pretty clever."
Kindred continued that when employees in the steel de-
partment are "completely out of work, they'll go to Darold"
for assignment and that if there is no work for them in the
steel department, Stewart will so inform Kindred, who then
assigns them interdepartmentally. Both Kindred and Stew-
art testified that Stewart is without power to hire or fire or
discipline, or to recommend same. Kindred added, how-
ever, that he will always "back up" the leadmen in case of
insubordination from those in their departments.
Borrelli credibly testified that, when he was elevated to
journeyman, Kindred told him that Stewart had recom-
mended it. Robert Shaw credibly testified that Stewart said
to him, in August 1977 that if he "ever caught [Shaw] grind-
ing without a face shield one more time, [Shaw would] be
out the door."' Kindred himself testified of responding,
when told by Qualls about the incorrect installation of some
2 Stewart testified that the safety conmittee, of which he is member, had
established a policy that three warnings for a safety violation would result in
discharge; and that he said to Shaw: "1I am only going to ask you three times
to wear your face shield, and then I am going to report it to Wayne [Kin-
dred] and Wayne is going to let you go." Shaw's demeanor was more con-
vincing than Stewart's, and the content of his testimony seemed perfectly
plausible, while Stewart's rendition rang of contrivance.
ladder brackets, that Qualls should "just speak to Darold
about it"--"I wasn't going to interfere."
Conclusions. Although Kindred and Stewart struggled
mightily, in their testimony, to depict Stewart as a cipher, it
is concluded that he is a supervisor and that Respondent
therefore is responsible for his conduct.
Indicative of his supervisory status, Stewart receives 45
cents more per hour than the other leadmen and 90 cents
more than journeymen generally, is over a substantial num-
ber of employees--15-on a daily basis, makes assignments
and oversees work in a manner requiring a significant de-
gree of judgment from time to time, has at least some say in
promotions, and enjoys Kindred's backing when faced with
insubordination. Beyond that, if Kindred were the immedi-
ate supervisor of all 50 or so of Respondent's production
employees, as Respondent contends, there would be a gross
disproportion between rank-and-file employees and super-
vision, and many would be without effective supervision
much of the workday because of the broad scope of Kin-
dred's responsibilities otherwise and the complexity of Re-
spondent's operation. Luke's Supermarket, Inc., 228 NLRB
763 (1977); Screwmatiec Inc.. 218 NLRB 1373, 1373-74
(1975); Stephens Produce Co., Inc. and Temple Stephens
Company, 214 NLRB 131. 132-33 (1974); Dexter Foods,
Inc., d/b/'a Dexter IGA Foodliner, 209 NLRB 369, 370-73
(1974): Bel-Air Mart, Inc., a Subsidian' of Mammoth Mart,
Inc., 203 NLRB 339, 342 (1973).
Stewart's supervisory status established, it is concluded
that he violated Section 8(a)(l) as alleged. More specifical-
ly, it is concluded that he unlawfully created an impression
of surveillance by:
(a) Saying to Quails, when asked why Kindred
seemed to be following him into the bathroom, that it
was "probably because . . . he thinks you are such a
good orgainzer."
(b) Saying to Quails, after asking if"this union stuff
has died down," that he was "smart enough to know
that you're behind it, and so are the other guys in the
office."
Saying to Quails, after asking if he had received Sha-
doan's mailing: "No, you wouldn't get one; you're the
one who mailed them out."
It also is concluded that Stewart uttered unlawful threats
by telling Quails that Kindred "would probably can your
ass" if Quails' and Borrelli's union activities were know,
and by telling Borrelli that organizers "would be going
down the road" if they persisted; and that he engaged in
unlawful interrogation be asking Quails if "this union stuff
has died down," and by asking Borrelli, Qualls, and Gard-
ner, and apparently another employee, if they had received
Shadoan's mailing.
2. Paragraphs 6(c), 6(h), 6(i), and 9
Paragraphs 6(c) and 6(h) of the complaint allege that, on
about June 3, 1977, Wayne Kindred "interrogated employ-
ees about their union activities and the union activities of
other employees," and "promised benefits to employees for
not engaging in union activity." Paragraph 6(i) alleges that,
on about June 3, 1977, Michael Nelson, an employee acting
as an agent of Respondent, "promised benefits to employ-
796
VAN PELT FIRE tRUCKS
ees if thev would cease from engaging in union activities."
Paragraph 9 alleges that Respondent violated Section
8(a)(I) in each instance.
The evidence. Michael Nelson testified that, while ihe was
working in the cab of a truck in the assembly department
on June 3. Kindred asked him through the cab window
what "the problem" was. Nelson assertedly replied that he
did not know what Kindred was talking about. prompting
Kindred to state that there was going to be "a union card-
signing party" that night and again to ask Nelson what "the
problem" was. Nelson answered, as he recalled, that he
"felt" that "one of the problems" might be that the employ-
ees "didn't get a cost-of-living raise" at the first of the year.
Kindred responded. according to Nelson, that he thought
he could get the employees a cost-of-living raise if they
would refrain "from signing these cards": Nelson asked if
he should "say something to the guys in the shop" about it;
and Kindred told him not to get involved and left.
Nelson's version continued that Kindred returned a few
minutes later and said he "sure wished that those guys
would hold off on signing these cards": that he "felt sure"
he could get them a raise. Nelson testified that he again
asked if he should speak to the employees about it. and that
Kindred replied. "Yeah, why don't you go out and tell them
... to hold off on signing" because a raise was in prospect.
Nelson testified credibly and without refutation that he
thereupon spoke with at least four employees-Borrelli,
John Burton. Edward Gardner, and George Tonolla-tell-
ing each in substance that Kindred thought he could get
them a raise if they would "hold off on signing the cards."
Kindred admittedly asked Nelson what "the problem"
was, explaining as he did that "we've got a lot of dissatisfied
people here" and that it was his job as production supervi-
sor "to find out what the problem is and get the problem
taken care of." Kindred testified that he directed the ques-
tion to Nelson because he "listens and is interested" and
was "one of the guys that was discouraged." Kindred added
that he could not recall Nelson's response. or if the cost of
living was mentioned.
A while later, according to Kindred, he again spoke with
Nelson, stressing that he "wanted to get to the root of the
problem" and asking Nelson's aid "to get this thing ironed
out." Nelson stated, as Kindred recalled, that he thought it
was "money problems," that a cost-of-living raise was
"overdue." Kindred admittedly replied that he was "sure" a
raise was "in the making." and urged Nelson to "get to
those guys that are discouraged, disgusted, and talk to them
and not have them do anything drastic until we can see
what we can do about it."
Kindred testified that, by "anything drastic," he meant
that he did not want "to get [a] third party involved."
Pressed by the General Counsel to state whom he thought
such a third party might be, he answered: "I don't know,
sir." Kindred denied making any reference to card-signing,
or saying he thought the employees would get a raise if they
did not sign cards, or directing Nelson to tell the employees
not to sign cards.
To the extent that their versions differ, Nelson is credited.
His testimony was rich in plausible, internally consistent
detail, and was verified in major respects by Kindred-
most notably by Kindred's admittedly asking that Nelson
urge his coworkers. lest a "third party" become involved, to
desist from "anything drastic until we can see what we can
do about" getting them a raise.
C(onclusions. It is concluded that Kindred violated Sec-
tion 8(a)(1 I) as alleged by asking Nelson what "the prob-
lem" was in the context of a forthcoming "card-signing
party." and by holding out the prospect of a wage increase
in the same context.
It is further concluded that Nelson, b) carrying out Kin-
dred's request that he tell the employees "to hold off on
signing" because a raise was in prospect, was serving in an
agency capacity, and that his conduct consequently vio-
lated Section 8(a)(1) as alleged. J. A. Conle/ CoCmpany, 181
NLRB 123 (1970).
3. Paragraphs 6(g) and 9
Paragraph 6(g) of the complaint alleges that Respondent
announced a pay raise on about June 3. 1977. and granted
it on about June 10, "to encourage employees to abandon
their support of the Union." Paragraph 9 alleges that Re-
spondent violated Section 8(a)(1) in each instance.
The evidence. On June 3, Respondent posted a Memoran-
dum to All Employees announcing that "a general wage
and salarv increase of 7% is effective 5/30/77." The raise
was reflected in paychecks that issued June 10.
The weight of evidence leaves no doubt that the June 3
memorandum was posted a matter of minutes after the con-
versations between Kindred and Nelson described in the
preceding segment. Nelson testified that he first saw it per-
haps 10 to 20 minutes after last talking with Kindred, and
"just a few minutes after" his resultant disclosures to John
Burton and George Tonolla that Kindred thought he could
get them a raise if they would "hold off signing the cards";
Borrelli, that he first saw it about 10 minutes after Nelson
had conveyed that information to him; and Edward Gard-
ner. that he first saw it when he clocked out that evening.
Kindred himself conceded that his conversations with Nel-
son preceded the posting and that both "could have been
the same day."3
Jett testified that the idea of a raise first was considered
on June 3. "right at the end" of a meeting "on other items"
atterrded by him, by the company president, Dallas, and by
Wilms; that this portion of the meeting lasted 10 to 15 min-
utes; that the Union was not mentioned during the delib-
erations; and that the Memorandum to All Employees was
prepared and posted immediately after the meeting. Both
Jett and Kindred testified that Kindred had no part in the
decision. Jett adding that while he and Kindred are in fre-
quent daily contact, Kindred had never told him before the
raise decision that the employees were unhappy or that a
union campaign was underway. Neither Dallas nor Wilms
testified.
Respondent admittedly has no pattern of general wage
increases. There were nine such increases from May 8,
1972, through the one in question ranging in amount from 5
to 7 percent, the last previous being 5 percent on August 2.
1976.
Conclusion, It is concluded that the announcement and
granting of the wage increase violated Section 8(a)(l) as
' Kindred made this concession with reluctance. earlier lestrifing that the
posting could not possibhl have occurred the da. ot his conversatins llh
Nelson and that I or 2 seeks "could hase" elapsed hetween ihe Iwo.
797
DEC ISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged. Kindred's conversations with Nelson, the appear-
ance of the raise announcement shortly after those conver-
sations, the precipitate nature of the decision, and the ab-
sence of any pattern of increases demonstrate beyond doubt
that the union situation was the motivating factor.
4. Paragraphs 6(e), 6(f) and 9
Paragraph 6(e) of the complaint alleges that on about
July 20 and 21, 1977. Benny Ruthman, an employee acting
as an agent of Respondent. "interrogated employees about
their union activities and the union activities of other em-
ployees." Paragraph 6(f) alleges that, on about July 25,
1977, Ruthman "created the impression in the minds of
employees that they were under surveillance for engaging in
union activities." Paragraph 9 alleges that Respondent vio-
lated Section 8(a)(1) in each instance.
The evidence. One of the employees. Robert Shaw, testi-
fied that, shortly after the July 18 mass mailing, as he
passed the parts counter on his way to clock in, Ruthman
asked from behind the counter if he had received his "union
booklet" yet: that he replied that he did not know what
Ruthman was talking about: and that Kindred, standing
opposite the counter from Ruthman, interjected: "Oh, I bet
you don't."
Shaw testified that, the next day, in the same circum-
stances, Ruthman asked a coworker, Tommy Edwards.
who was behind Shaw in line, if he had received a union
card in the mail: that Edwards answered that he did not
know what Ruthman was talking about; and that Kindred,
again standing across the counter from Ruthman, stated:
"Well, if you didn't receive it, somebody must have beaten
sou down to the mailbox."
Although professing an inability to recall the incidents,
Ruthman admitted it is "possible" that he asked Shaw and
Edwards the questions attributed to him. He denied, how-
ever, that Kindred ever made remarks of the sort assigned
to him: and Kindred denied that he was ever around when
Ruthman engaged in interrogation of this nature. Edwards,
no longer on the payroll, did not testify'.
Shaw's description of the incidents is credited. His de-
meanor was excellent, and his recital full of convincing de-
tail. Ruthman's testimony, on the other hand, seemed more
tailored to Respondent's wishes than to the truth: and Kin-
dred's veracity was betrayed by a penchant f)r evasion,
several instances of which are noted in this decision.
On a Monday shortly thereafter, as Qualls entered the
plant after a weekend of visiting employee homes in aid of
the Union. Ruthman greeted him: "Hey, Billy. I hear you
burnt three tanks of' gasoline out this weekend, trying to get
votes."4 Ruthman then said, referring to union materials
placed on Jett's desk by some of the employees: "I hear
three or four envelopes already went to the office."'
Ruthman and Kindred are brothers-in-law, next-door
neighbors, and firiends. They also commute to and from
work together. Kindred testified that they "make it a prac-
4I r p. 797. 1 7. hereby is corrected to) read "three tanks" instead of "three
tons",.
' Jetl testified that, alter the July) 18 mailing, he '"ound a whole stack of
envelopes" on his desk
tice" never to talk shop except on the job. and that they
discussed the Union only once, when he asked Ruthman in
late July if he had been "contacted about organizing the
plant." The General Counsel does not contend that Ruth-
man is a supervisor.
Conclusions. It is concluded that Ruthman's interroga-
tions of Shaw and Edwards about the Shadoan mailing vio-
lated Section 8(a)(1) as alleged. Kindred was present both
times, and by his comments upon Shaw's and Edward's
replies and by his relationship to Ruthman gave them rea-
son to believe that Ruthman was on a mission for manage-
ment. Stewart & Stevenson Services, Inc., 164 NLRB 741.
742 (1967).
It is additionally concluded. however, that Ruthman's re-
marks to Qualls about burning "three tanks of gasoline"
and about the "three or four envelopes" in the office did not
violate the Act as alleged. There is no evidence that they
were prompted by or made in the ratifying presence of
management, and the record suggests that the information
on which they were based came from banter among the
employees that morning, rather than from management. To
attribute Ruthman's conduct to Respondent in these cir-
cumstances would be to "muzzle" him concerning the
union drive simply because of his relationship to Kindred-
a result ignoring his Section 7 rights as an employee and a
likely member of any bargaining unit to grow out of the
union campaign. .' M. Broadcasting C(orp.. 211 NLRB 560,
565 (1974). See also Western Sample Book and Printing Co.,
Inc., 209 NLRB 384. 385, fn. I (1974).
C. The .lleged Viiolaions of Section 8(a)(3)
1. The evidence
Borrelli was hired in October 1975 as a helper in the
body department. He was transferred to the steel depart-
ment in January 1976, and achieved journeyman status in
July 1976. He did most of the heliarc welding in the plant.
Kindred testified that Borrelli "caught on real good" and
"did well" in his work. Quails first worked for Respondent
in 1971 72, quitting after about a year. He was rehired in
October 1975. as a helper in the body department, became
a journeyman in about July 1976. and was transferred to
the steel department in May 1977. Kindred testified that
Quails, too, was "a good employee." Both quit on August 5.
1977. in circumstances contended bv the General Counsel
to amount to unlawful constructive discharges.
Borrelli and Qualls were prime movers in the latest or-
ganizational drive. Quails triggered the drive by contacting
an official of the Union, Gerald Steel. in April or May 1977.
after which he met with the Union's Shadoan several times
in his home, espoused the need for representation to his
coworkers in the plant, provided Shadoan with employee
addresses preliminary to the July 18 mailing, and devoted a
weekend in late July to calling on employees in their homes
about signing union cards. Borrelli likewise engaged in in-
plant advocacy of the Union, aided the July 18 mailing by
looking up addresses, and attended one of the Shadoan
meetings at Qualls' home.
Their disclaimers notwithstanding, officials of Respon-
dent learned of the union agitation no later than June 3,
798
VAN PELT FIRE TRUCKS
when the unlawful wage increase was decided upon.6 The
precise date or dates that Borrelli's and Quails' involvement
became known is unclear, although plainly weeks before
they quit. A tell-tale sign, perhaps, was Kindred's testimony
that the work of both began to fall down in May, which
happened to coincide roughly with the organizational onset,
particularly since he was at a loss to support this assertion
in other than the most nebulous of terms.' and since em-
ployers have been known to perceive shortcomings not pre-
viously seen when union activity begins.
More concretely, Kindred admittedly knew about Borrel-
li by mid-July, when an unidentified employee complained
that Borrelli was being "pushy" about the Union;' and
Stewart's conversations with Quails. discussed above in the
context of Section 8(a)( I), revealed his awareness of Quails'
and Borrelli's sympathies and activities as far back as June.
Stewart conceded, moreover, that the identity of those be-
hind the Union was "very common knowledge" around the
plant, to which Kindred added that there are "a lot of ru-
mors" in the plant and that they are "likely to get around
pretty fast."
The weight of evidence leaves no doubt that Respondent
harbors a considerable union animus. This was revealed by
the unlawful wage increase in June. by Stewart's "can your
ass" remark to Quails later in June, by Stewart's comment
to Borrelli in late July' that some of the organizers "would
be going down the road" if they persisted. and by Stewart's
unabashed antiunionism generally. Although more remote,
animus also was revealed by Kindred's remarks to Borrelli
in 1976. when Borrelli asked for a raise. that Borrelli would
"have to wait until the people in the office let their feathers
get unruffled" following an abortive organizational try.
Kindred elaborated on that occasion that Jett had been
going to fire Borrelli until he satisfied himself that Borrelli
had had "nothing to do with it."'
Even though they quit on the same day. Borrelli and
Quails did not leave at the same time, or pursuant to a joint
plan. Borrelli quit before the end of his shift. in the early
afternoon of the 5th, telling Kindred at the time that he was
being "harassed." He assertedly made the decision the day
before, upon Stewart's intimating that he had made a pro-
duction error while fabricating some live lines.' Quails left
after Borrelli, but also before shift's end, having decided to
6 Despite the overwhelming evidence that the wage increase was designed
to blunt the union drive, Jett and Kindred both testified that they did not
learn of the drive until after Shadoan's July 18 mailing.
7 Kindred testified that the first sign of slippage in Borrelli's work. in May.
was his carelessness in fashioning some truck steps. This was "no big deal."
according to Kindred, although he assertedly mentioned to Borrelli that the
steps were "drooping." From then on. Kindred stated, Borrelli's perform-
ance was generally "loose" or lacking in attention, although there was "noth-
ing to put a finger on."
The first sign iof deterioration in Quails' case. Kindred testified, was when
an unidentified employee cut a hand on a weld that Quails suppisedly had
not ground adequately. Pressed by the General Counsel for other signs of
erosion in Qualls' work. Kindred acknowledged that ihere was "nothing
major, nothing even to make mention of."
R Kindred initially testified that he learned of Borrelli's and Quails' in-
solvement "not while thes were there" i .e., after the) had quit Only later,
after much equivocation and with great reluctance, did he admit to the mid-
Jul' report of Borrelli's being "pushy" about the inion.
This is Borrelli's credited version of Kindred's remarks. Kindred denied
making them, and Kindred and Jett denied their underlying substance Both
the content and style of Kindred's and Jett's testimons suggested frequent
resort to falsehood. Borrelli was the most credible of the three.
1O lave lines ;ire partitins l stalled on fire trucks to separate hoises
do so moments before because he felt he was being treated
unfairly.
Both Borrelli and Quails received written warnings for
production mistakes a few days before quitting. It is Re-
spondent's policy, never implemented. that three warnings
can result in discharge. Jett testified that production errors
had become of such concern on about August I that he
directed Kindred to "keep track" of them for purposes of
seeking their elimination. Kindred testified at one point that
there was "a rash of errors" at that time: at another, that
production mistakes "are not that uncommon"; and at yet
another, anomalously. that "there was none" except for
those by Borrelli and Quails and by helpers." Stewart testi-
fied that there are "all sorts of production mistakes." Yet,
except for three "write-ups" against Borrelli and one
against Quails, detailed below, not a single written warning
issued in 1976 and 1977 for production error.' Such a
warning will issue. according to Kindred. only if the oflend-
ing conduct "looks like it's becoming a habit."
Facts pertinent to the individual situations of Borrelli
and Quails follows.
Borelli. On June 9. Kindred spoke to Borrelli about ai
grinding disk that apparently had been left in a truck's
foam tank the previous April 16. The oversight had been
detected after the truck's delivery, and was reported to Re-
spondent on the 9th by the recipient fire chief; and Kindred
felt he had isolated Borrelli's responsibility by checking
work records. Borrelli, although testitN ing of unvoiced
doubts that he was at fault.' did not contest the accusa-
tion -"Okay. I guess I'm the one to blame" and told Kin-
dred he -would try to be more careful. Stewart also spoke to
Borrelli about the incident, saying that "a report" would be
placed in his personnel file, but that he would not be writ-
ten up.
Stewart to the contrary. a written warning. dated June 14
and prepared by Kindred. was placed in Borrelli's file. It
states:
Borrelli was told by D. Stewart to clean and grinded
stainless steel foam tank on Florin trucks on 4 16 77.
This was after he already had been told to do it. After
the truck was delivered the Chief from Florin brought
back a bag of metal and grinding discs out of the foam
tank. This was on 6 9 77. [Borrelli] at that time was
told that he was to carelessness and check over hisjobs
when he was finished.
Kindred testified that he "actually made the decision to
formally put it on the paper" on the 14th, Jett having di-
rected him to "make a record." Jett did not specify' that a
written warning issue, according to Kindred, but Kindred
wrote it in that manner just the same, explaining that
"that's the form I had, so I used it." Kindred first testified
that he showed the warning to Borrelli "on or around the
14th." only to state later that this testimony was incorrect
and that Borrelli "did not see this warning report."
11 1elpers, who comprise about 10 percent of the work t;rce. reputedly are
not subject to written warning for production errors because still learning
12 Unless one warning issued to an emplosee ior using too mans bolts can
be so considered Kindred seemed in doubt about calling that a pro duction
error. A number ol written warnings issued tOr such things as tardiness and
absenteeism. talking too) much, lack ft interesl in ,work. etc
| Aniother emploee had woirked on the truck A ith him.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borrelli's performance next came up for discussion on
July 28, when he was summoned before Kindred and Stew-
art and shown another written warning, to be placed in his
file. This one, prepared by Kindred and cosigned by Stew-
art,"4 cites the June 14 warning as Borrelli's first and this as
his second, and contains this general comment:
Borrelli has been getting more and more careless re-
cently. When a mistake or other problem has been
brought to his attention he has not indicated he would
try to improve. He just talks back and doesn't seem to
be interested in doing better next time.
Particularizing, the July 28 warning describes Borrelli's lat-
est transgressions this way:
On 7- 18-77 D. Stewart talk to Borrelli about a set of
battery box's he build out of aluminum diamond plate.
Borrelli did the job wrong and Stewart explain to him
that he wasted about $75.00 of aluminum. Borrelli said
to Stewart ("Well why don't you fire me") Stewart said
"no I don't think I need to do that but you should
know so you can be more careful in the future.
On 7-19-77 D. Stewart talk to Don Borrelli about
wasting aluminum filler rod. Stewart explained to him,
he was to save all pieces of rod and put on welding
machine in a certain place. On 7-26 77 Stewart
brought a hand full of pieces that he found on the floor
after Borrelli had welded aluminum running boards.
Kindred testified that he decided to issue this warning
because Borrelli's work "had fell off' and because he was
"getting upset and pushy and going around with a frown on
his face." Kindred elaborated that Borrelli had been "get-
ting more and more careless recently with his mistakes." yet
conceded that he had observed no signs of inattention be-
tween June 9 and July 28. He nevertheless insisted that he
had detected a certain "carelessness" by Borrelli, but could
not cite anything specific as illustrative.
Kindred told Borrelli during the July 28 meeting that his
work had been slipping and suggested that he might be
"happier someplace else." Kindred also expressed displea-
sure with Borrelli's horseplay, mentioning an incident the
previous week when he shocked a coworker "in the ass"
with the heliarac welder. Borrelli asked if all this was being
raised "over the union conflict," and both Kindred and
Stewart denied that it was. Kindred said that, this being
Borrelli's second write up, he would be "out the door"
should there be another.'5
Regarding the battery-box mistake mentioned in the July
28 warning, Borrelli admittedly made a one-eighth of an
inch mismeasurement, requiring that the project be redone.
He detected the error himself and called it to the attention
of Stewart, who then reported it to Kindred ostensibly in
keeping with Jett's edict to "keep track of" production mis-
14 Explaining Stewart's participation, Kindred testified: "1 do it for a wit-
ness purpose only when I have a discussion with an employee who I feel I'm
going to have a problem with or we're not going to see eye to eye over it. I
have a witness there for my own protection...."
15 This is Borrelli's credited version of the meeting. Kindred denied sug-
gesting that Borrelli might be happier elsewhere, that he said Borrelli would
be fired if there were another write-up, and that there was any reference to
the union situation. Stewart testified that no mention was made of further
warnings or of the union situation. As earlier indicated, Borrelli was gener-
ally a convincing witness, while Kindred and Stewart were not.
takes. Stewart testified that he did not think that Borrelli
"would be wrote up for it."
Concerning Borrelli's alleged waste of filler rod, which is
used in welding, Kindred and Stewart testified that Kindred
and called Stewart's attention to filler-rod waste in early
June. Stewart testified that he consequently cautioned those
who weld, Borrelli among them, to guard against waste.
Then, on July 19. so the story goes, Kindred noticed that
Borrelli had dropped reusable lengths on the floor, causing
them to be unfit for further use, and told Stewart to talk to
him about it. Stewart did speak to Borrelli, telling him, as
Borrelli credibly recalled, that he \was not to discard any
pieces, even those too short for reuse, on the floor. ' ,
On July 26, Stewart supposedly gathered up and deliv-
ered to Kindred "half a dozen pieces" ranging in length
from 12 to 24 inches, representing that Borrelli had thrown
them on the floor. There is no evidence, however, that Bor-
relli was confronted with this bundle, during the July 28
meeting or any other time. Rather. Kindred testified that he
showed Borrelli several pieces 12 to 14 inches long that he
had picked up. Borrelli testified, on the other hand, that
Kindred displayed some pieces 4 or 5 inches long--i.e., too
short fobr further use--and, consistent with Stewart's earlier
directive, scolded him for dropping any pieces on the floor.
Borrelli assertedly protested that everybody threw the short
pieces on the floor. which is true. and that it was "no big
deal." lie testified that he did not throw reusable lengths on
the floor.
Borrelli is credited that he did not throw reusable pieces
on the floor and that Kindred's rebuke focused on ex-
pended rods. The warning document speaks of "all pieces
of rod," and Kindred partially corroborated Borrelli by tes-
tifying that he did talk of disposing the short pieces in an
orderly way "rather than toss them on the floor, if it's
handy." Beyond that, had Stewart truly amassed a number
of discards 12 to 24 inches long, it is inconceivable that
Kindred would not have flaunted them during the July 28
meeting. Further, as previously noted. Borrelli's overall
credibility, was substantially more impressive than Kin-
dred's: and, finally, the weight of all evidence indicates that
Borrelli by now had become a target of petty harassment, a
circumstance giving his testimony about the filler rods spe-
cial plausibility.
Just as Stewart did not think Borrelli would be written up
over the battery-box matter, he thought that Kindred
"would talk to him" about the filler-rod waste, "but that is
it."
As for Borrelli's horseplay, mentioned by Kindred in the
July 28 meeting but not in the written warning, Borrelli
admittedly shocked a coworker in the manner related.
Stewart had seen this, and reported it to Kindred. The rec-
ord established that horseplay in the plant is pandemic,
assumes many forms, and generally is tolerated. The record
also established that Stewart seldom if ever reports it to
Kindred and himself participates at times.
On about August 1, Stewart told Borrelli that, by failing
to paint under some compartment caps, he had done less
than a journeyman job. Borrelli responded that the neglect
"' Stewart testified that he spoke to Borrelli only in terms of keeping "the
usable stuff off the floor," and that he made no comment about pieces too
short for reuse. As indicated before, Borrelli seemed the more reliable wit-
ness of the two, and so is credited.
800
VAN PELT FIRE TRUCKS
was not his, and later ascertained that Benny Ruthman had
done the work in question. Upon being so informed, Stew-
art told Borrelli to mind his own business.
As earlier stated, Borrelli decided to quit on August 4.
when he felt that Stewart had falsely accused him of error
in the fabrication of some live lines. The accusation. ac-
cording to Borrelli. was followed by Stewart's making three
trips to the scrap bin during the next 20 or 30 minutes. as if
seeking supporting evidence. Stewart testified that he
merely asked Borrelli where the other live lines were, a
"normal procedure." and that, while he may well have gone
to the scrap bin, that had no sinister purport "I must go
there 16 times a dav."
Borrelli told Kindred of his decision to quit on the after-
noon of the 5th, saying it ,was "best" that he leave in view of
"everything that's going on and everything around here."
Borrelli theorized that he was being "harassed" because of
his union activities, which Kindred promptly denied. Kin-
dred testified that he told Borrelli that he did not "think it
would he necessary" that he quit.
Even though Borrelli bv then was long gone, Kindred
placed still another written warning in his file on September
2. It states:
On 9 2 77 Truck =2632 I ivermore was in assembl,
dept. and we found that a lillegible] comp't shelf' that
Borrelli had made was 2" to narrow. We had to make
and install new one. Using 22" x 72" of 12 ga. cold roll
and 2 hr. labor.
Kindred testified that the mistake had been reported to him
by the leadman in the assembly department. George Tonol-
la. and that he was able to fix the blame on Borrelli '"b
checking back in my records in the office to see Awho worked
on that job." Borrelli was never apprised of this warning.
Asked by the General Counsel why he went to this trou-
ble after Borrelli had quit, Kindred evaded that he "pre-
pared it for my own advantage . . . just to have it . . .
because I thought I might want it." lie later testified that he
did it because Qualls had told Stewart on August 5 that he
was going to the NLRB. and that he, Kindred. "tied the
two together."
Borrelli testified that, beginning in April or May, Stewart
began assigning him such menial tasks as sweeping and
picking up hoses; and that, after Shadoan's July 18 mailing,
Stewart began directing him to close windows and turn off
lights as well. He admitted, however, that he was not the
only journeyman asked to do these things and that they
were not difficult or time-consuming-"it was just the
idea." He once asked Stewart why it took a journyman to
sweep the floor, and Stewart answered: "Because I said so."
Stewart recalled a number of instances and circumstances
in which journeymen were asked to sweep, and testified
concerning lights and windows that "almost nightly I am
asking two or three guys to pitch in and give us a hand."
Qualls. On August 2, Kindred prepared and presented to
Quails a written warning stating:
7-30-77 B. Quails was given a job to make and install 2
steps on job =2632 Iivermore. D. Stewart explained
and give him drawing showing size or location. On 8-2-
77 the truck was check over to see itf it was completed.
It was found that B. Quails made the step I" wider and
they hit the cab when it was raised up. B. Qualls is a
journeyman and should be doing journeyman work.
The step had to be done over.
Kindred told Quails during the attendant conversation that,
as a journeyman, he was "capable of better work." Quails
asked why this warranted his being written up, and Kin-
dred said that Respondent was "trying to keep records of
all mistakes." Kindred adopted a different explanation dur-
ing his testimony, stating that the monitoring of production
mistakes "had nothing whatsoever to do with" the QuaIls
warning: that it issued simply to "advise him that he can do
better."
Qualls did not deny that he made the mistake as de-
scribed. lie detected it in the first place and reported it to
Stewart. who in turn told Kindred. Stewart testified that he
told Kindred because he had been instructed to report pro-
duction errors. Stewart added that he was "surprised" that
Quails "got wrote up over it" -"I didn't think [Kindred]
would take it that far." Kindred estimated that the mistake
cost $50 in material, plus 1-1/2 to 2 hours of labor, and
acknowledged that it was "not an uncommon mistake."
Stewart testified that "it was not a costly mistake."
Later on August 2, or perhaps the next day. Quails told
Stewart of a production mistake made by Ken Burton, and
asked if Burton would be written up. Stewart replied that
Quails shouldi mind his own business: then, about a half
hour later, told Quails that Burton would not be written up
because still a helper. Explaining why he initially told
Quails to mind his own business. Stewart testified:
Well, I was involved in my own work and it was a
simple mistake, and I didn't see anS great problem to
production, so I didn't think WaNne [Kindred] would
want to be bothered with little stuff:
Then, on August 5, Quails told Stewart of a production
error made by Barry Orzalli and Clyde Frazee the day be-
fore. Stewart again told him to mind his own businss. Coun-
tering that it was his business inasmuch as he had been
written up for a mistake that was "a lot less costly," Qualls
declared that, unless Orzalli and Frazee were written up, he
was going to the NLRB. With that, he quit."
Seeing Quails leave, Edward Gardner asked Stewart
what had happened. Stewart said that Qualls "just walked
out," and Gard,'er observed that he hated to see a man lose
his job like that. Stewart responded: "Well, I guess all the
union representatives have left."' 8
Explaining why he quit, Quails testified:
I felt I was being harassed and receiving unfair treat-
ment, and I knew that Borrelli had received numerous
employee warnings and I saw no reason to stay and get
a bunch of them written up on me.
17 Contrary to Quails. Stewart testified that Qualls did not report the Or-
zalli-Frazee nistake, but instead reported that someone had just "screwed
up" half a sheet of metal. Stewart continued that his investigation failed to
validate the report Qualls is credited based on credibility considerations
earlier noted
1' This is Gardner's credited version of the exchange, Stewart denying the
remark about union represeniatives Gardner. still on the payrol, seemingly
had nothing to gain hb testifying adversely to Respondent. and was impres-
sise in dlmealn,,r and remcall as msell Stesart's endacity has been noted.
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Conclusions
It is concluded that neither Borrelli nor Qualls was con-
structively discharged in violation of Section 8(a)(3).
Extracting from Crystal Princeton Refining Company, 222
NLRB 1068, 1069 (1976):
There are two elements which must be proven to estab-
lish a "constructive discharge." First, the burdens im-
posed upon the employees must cause, and be intended
to cause. a change in his working conditions so difficult
or unpleasant as to force him to resign. Second, it must
be shown that those burdens were imposed because of
the employee's union activities.
Taking the second element first, it is evident that the
written warnings against Borrelli and Qualls, and the pick-
ing at Borrelli otherwise, were prompted by their union ac-
tivities. As earlier indicated, both were known to be prime
movers in the union drive as early as June, if' not before;
Respondent has a decided antipathy to becoming orga-
nized: and there was no history of like treatment for other
employees despite the prevalence of production mistakes.
Kindred's explanation that Borrelli received the July 28
warning because he was "getting upset and pushy" is par-
ticularly revealing of discriminatory motivation alongside
Kindred's other testimony about a previous employee com-
plaint of Borrelli's being "pushy" over the Union. That
Borrelli's July 28 and Quails' August 2 warnings were im-
properly motivated is further suggested by their temporal
proximity to the July 18 Shadoan mailing and by Stewart's
admitted surprise that they issued. And the closeness in
time of Borrelli's June 14 warning to early June wage in-
crease suggests that they were part of the same union-chill-
ing scheme."
It also is evident, at least as concerns Borrelli that if not
trying to induce resignation. Respondent was pleased
enough when it happened to seek to insure its permanence.
Given the three-warning discharge policy, that can be the
only reason for placing the third warning in Borrelli's tile
weeks after his departure.
It is the first element of constructive discharge "a
change in his working conditions so difficult or unpleasant
as to force him to resign" that is not satisfied in this case.
Even allowing for an improperly motivated increase in me-
nial tasks assigned to Borrelli, the content of his and Quails'
jobs did not undergo major adverse changes, and it cannot
be said that the improper warnings and other harassment
made their situations "so physically or emotionally impossi-
ble" as to license their receiving the benefits of discharge
while quitting. Crystal Princeton Refining C'omnpany, supra at
1069. As noted in Central Casket Co., 225 NI RB 362, 363
(1976). the Act provides an "appropriate and direct rem-
edy" for most infringements of Section 7 rights without
need fbr employees to quit, and the infringements inflicted
on Borrelli and Quails certainly come within this grouping.
See generally G. .. .Dress Co., 225 NL RB 60. 70 (1976):
19That Borrelli uwas not told of the June 14 warning until receiving a
second on Juls 28 does not militate against its having a union-chilling pur-
pose. Rather. it indicates that Respondent was "sandbagging" Borrelli with
an idea of placing him in unwvitting jeopardy under the three-warning dis-
charge policy.
United Service Corporation d/hba Forest Park Ambulance
Service, 206 NLRB 550 (1973): F. W. Woolworth. 204
NLRB 396 (1973): Avondale Shipvards, Inc.. 162 NLRB
421, 428 429 (1967): J. W: Mays, Inc., 147 NLRB 942
(1964).
Although the written warnings to Borrelli and Quails
were not alleged as violations, the circumstances of their
issuance were fully litigated. Consequently, it having been
concluded that they were prompted by antiunion consider-
ations, it is now concluded that they violated Section 8(a)(3)
and that they are properly remediable in this proceeding.
(CON( tI.SIONS ()O LAwA
1. By imparting to its employees the impression that
their union activities were under surveillance, by stating to
its employees in substance that they would be discharged
for engaging in union activities, by interrogating its employ-
ees concerning their union activities, and by promising and
granting a wage increase to its employees to induce their
withdrawal of support from the Union, all as found herein,
Respondent in each instance violated Section 8(a)(l) of the
Act.
2. By issuing written warnings to Borrelli on June 14,
July 28, and September 2, 1977. and to Quails on August 2,
1977, all as found herein, Respondent in each instance vio-
lated Section 8(a)(3) and (1) of the Act.
3. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
4. Respondent did not otherwise violate the Act.
O)RDER2"
I he Respondent, P. E. Van Pelt, Inc., d/b/a Van Pelt
Fire Trucks, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Imparting to its employees the impression that their
union activities are under surveillance, or stating to its em-
ployees in substance that they will be discharged for engag-
ing in union activities, or interrogating its employees con-
cerning their union activities, or promising or granting
wage increases to induce its employees to withdraw their
support from Operating Engineers Local Union No. 3, In-
ternational Union of Operating Engineers, AFI. CIO, or
any other labor organization.2
(b) Issuing written warnings to its employees because of
their union activities.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in their exercise of
rights under the Act.
2. Take this affirmative action:
(a) Remove from its records, including the personnel files
2' All outstanding motions inconsistent with this recommended Order
hereby are denied. In the event no exceptions are filed as provided by Sec.
102.46 of the Rules and Regulations of the National L.abor Relations Board,
the findings. conclusions 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.
2' this Order sh:all not be construed as requiring that the unlawful wage
increase be rescinded.
802
VAN PELT FIRE TRUCKS
of Don Borrelli and William W. Quails. any reference to
the written warnings that issued to Borrelli on June 14, July
28, and September 2. 1977. and to Quails on August 2.
1977, as well as the warnings themselves, and notify' Borrelli
and Quails in writing that it has done so and that the warn-
ings have been retracted.
(b) Post at its plant in Oakdale, California, the notice
which is attached and marked "Appendix."22 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 32. after being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereoft and he maintained fobr 60 consecutive
days thereafter. in conspicuous places. including all places
where notices to employees are customarily are posted.
Reasonable steps shall be taken by Respondent to insure
that the notices are not altered, defaced or covered by any
other material.
(c) Notify the Regional Director for Region 32. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
The complaint is dimissed to the extent that violations
have not been found.
22 In the event that this Order is enforced by a judgment of the 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 Judg-
ment of the United States Court of Appeals Infrorcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
N)TI (E To EMPI.OYIi:S
POSITED BY ORDEiR OF ItIE
NATIONAL LABOR REI.AI()NS BOARD
An Agency of the United States Government
A hearing, in which we participated and had a chance to
give evidence, resulted in a decision that we had committed
certain unfair labor practices in violation of Section 8(a)( I)
and (3) of the National Labor Relations Act. and this notice
is posted pursuant to that decision.
Section 7 of the National Labor Relations Act gives all
employees the following rights:
'To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
[o refrain from any or all such activity except to
the extent that the employees' bargaining represent-
ative and employer have a collective-bargaining
agreement which imposes a lawful requirement that
employees become union members.
W V wi1l. NOT impart to our employees the impres-
sion that their union activities are under surveillance.
or state to our employees in substance that they will be
discharged for engaging in union activities. or interro-
gate our employees concerning their union activities,
or promise or grant wage increases to induce our em-
ployees to withdraw their support from Operating En-
gineers Local Union No. 3. International Union of Op-
erating Engineers. AFL CIO. or any other labor
organization.
W ti wiii sor issue written warnings to our employ-
ees because of their union activities.
WE wnvI. NO't in any like or related manner interfere
with, restrain, or coerce our employees in their exercise
of rights under the Act.
Wit wii.i. remove from our records, including the
personnel files of Don Borrelli and William W. Quails,
any' reference to the written warnings that issued to
Borrelli on June 14. July 28. and September 2. 1977.
and to Quails on August 2. 1977. as well as the warn-
ings themselves, and notif3y Borrelli and Quails in writ-
ing that we have done so and that the warnings have
been retracted.
P. E. VAN PEL. I N(,. D/B/A \ AN PEII FIRi rRU'(KS
803