Viele & Sons, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1977

227 N.L.R.B. 1940 (N.L.R.B. 1977)

1940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Viele & Sons, Inc. and Local Freight Drivers Union
Local No. 208, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 21-CA-14200
January 31, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On October 18, 1976, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and General
Counsel filed a brief in response to Respondent's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Viele & Sons,
Inc., Santa Fe Springs, California, its officers, agents,
successors, and assigns , shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Admimstrative Law Judge 's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F2d 362 (CA 3, 1951) We have carefully
examined the record and ford no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO , Administrative Law Judge: The
hearing in this case held August 3 and 4, 1976, is based on
an unfair labor practice charge filed by the above-named
Union on December 2, 1975, as amended May 7, 1976, and
a complaint issued December 31, 1975, and an amended
complaint issued May 17, 1976, on behalf of the General
Counsel of the National Labor Relations Board , herein
called the Board, by the Regional Director of the Board,
Region 21, alleging that Viele & Sons , Inc., herein called
Respondent, has engaged in unfair labor practices within
the meaning of Section 8(ax 1), (3), and (5) of the National
227 NLRB No. 284
Labor Relations Act, as amended, herein called the Act.
Respondent filed an answer and an amended answer
denying the commission of the alleged unfair labor practic-
es.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
parties' oral argument and the posthearing briefs, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Viele & Sons, Inc., Respondent, is a corporation engaged
in the wholesale distribution of groceries with a facility
located in Santa Fe Springs, California, where it annually
receives goods and products valued over $50,000 from
suppliers located within California, which suppliers in turn
purchase said goods and products directly from suppliers
located outside California. Respondent admits that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Freight Drivers Union Local No. 208, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, is
admittedly a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
These are the ultimate questions presented for decision:
(a) Whether Respondent discharged employees Luna,
Warner, and Hadden and, if so, were they discharged
because of their union sympathies and activities.
(b) Whether Respondent has refused to reinstate Luna to
his former position because of his union sympathies and
activities.
(c) Whether Respondent discharged employee Walls
because it thought that he was a union sympathizer.
(d) Whether Respondent questioned employees about
their union sympathies and activities, threatened employees
with the closing of its business and with discharge if they
chose union representation or supported the Union, and
promised employees improved wages and other employ-
ment benefits and increased their wages to discourage them
from supporting the Union.
(e) Whether the Union represented a majority of Respon-
dent's employees in an appropriate unit and, if so, under the
circumstances of this case, is Respondent's refusal to
recognize the Union as the employees' bargaining represen-
tative an unlawful refusal to bargain warranting a remedial
bargaining order.
VIELE & SONS, INC. 1941
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent is a wholesale distributor of groceries. On
December 2, 1975,1 at the start of the workday at its Santa
Fe Springs warehouse, the location involved in this case,
Respondent employed four truckdrivers and five ware-
housemen , all of whom were supervised by Anthony Viele,
Sr., Respondent's president and owner, and Anthony Viele,
Jr., the Company's vice president and warehouse supervi-
sor. The employees were not represented by a labor
organization. In late October, truckdnver Luna distributed
union authorization cards to his fellow drivers and, on
November 24, after work, union representatives met with
the company's four truckdrivers - Luna, Hadden, Warner,
and Guerra. Union Representative McKiernan told them
about the benefits of union representation. He explained
the wages and fringe benefits provided in the Union's
contracts covering those employees employed by other
employers in the same business as Respondent and told the
drivers that if Respondent recognized the Union it would
attempt to negotiate comparable terms. He explained the
Union could secure recognition as the employees' bargain-
ing representative in one of two ways. It could petition for a
representation election or ask Respondent for voluntary
recognition on the basis of the authorization cards signed
by the employees 2 and, if Respondent refused, the employ-
ees could strike for recognition. The drivers agreed to
follow this latter course of action and agreed union
representatives would visit the warehouse December 2 and
seek recognition.
2. December 2, 1975
On December 2, at approximately 6:30 or 6:45 a.m.,
Union Representatives McKiernan and Ross entered the
Company's premises and spoke to Viele Sr. in the yard
which is adjacent to the warehouse. They introduced
themselves and McKiernan stated that they had pledge
cards executed by Respondent's employees which autho-
rized the Union to represent them and asked Viele Sr. if he
desired to have a third party check the authenticity of the
cards. Viele Sr. replied he did not need a union and that his
employees "were all one big family and all of the people
that were employed were his sons." McKiernan handed
him the authorization cards which were signed by Luna,
Hadden, Warner, and Guerra, and asked if the employees
who signed them "were his sons." Viele Sr., after looking at
the cards, returned them to McKiernan stating, "no they
1 All dates herem unless otherwise specified refer to 1975.
2 The Union on December 2 had in its possession authorization cards
signed by all four of Respondent 's drivers.
3 The description of this conversation between McKiernan and Viele Sr.
is based on McKiernan 's testimony . In bearing and demeanor McKiernan
impressed me as the more trustworthy witness. Moreover, Viele Sr.'s
testimony was vague and uncertain I do not ,however, credit McKiernan's
testimony that as he left the premises he heard Viele Sr., in the background,
telling Luna that if Luna had signed a card he could "get out too " Luna did
not corroborate this testimony.
4 The above-described conversations between the Vieles and their
remarks to Luna are based on Luna's testimony . The Vieles admit they spoke
used to be my employees" and told the union representa-
tives to get off his property which they did.3
On December 2, while the union representatives were
talking with Viele Sr., Luna was at work, having arrived at
the warehouse at 6 a.m. to help the warehousemen load the
trucks for the day's deliveries. The other drivers were not
scheduled to arrive until about 7 or 7:30 a.m. When Viele
Sr. ended his conversation with the union representatives he
walked into the warehouse about 6:40 or 6:50 a.m. and
spoke to Viele Jr. At the time Luna was working approxi-
mately 15 feet away and overheard Viele Sr. tell Viele Jr.,
"the union's out there, I guess we're not going to have no
truckdrivers because these guys want the Union." Then,
shortly after, as Luna approached Viele Sr. and Viele Jr.
with merchandise for Viele Jr., he overheard Viele Sr. say
that Viele Sr., "might as well lock up the place, close up the
place. These guys ain't going to drive for us. Send them all
home." At this point Viele Sr. turned to Luna and, speaking
to Luna, declared, "after all I've done for you." Viele Jr.
told Luna, "you know as far as I'm concerned you're out.
Get out. Get out." Luna left the premises.4
Upon being told to leave the premises Luna joined the
Union representatives at the entrance to the Company's
yard. Shortly thereafter Respondent's other truckdrivers,
Warner, Guerra, and Hadden, who, like Luna, signed
authorization cards for the Union, arrived for work and
were advised by Union Representative McKiernan to enter
the warehouse and find out about their status.5 Guerra
apparently entered first and then Hadden and Warner
entered the warehouse together, at which time Jim Viele,
another son of Viele Sr., told them the company did not
intend to have a union and asked if Hadden and Warner
wanted to go to work. Hadden and Warner indicated they
would like to discuss the matter, so, Jim Viele took them to
the Company's front office where they found Viele Sr.,
Viele Jr., and Guerra.
Viele Jr. told Warner, Guerra, and Hadden,6 "we don't
want a union here, we're not a union place, we're a family
and we can't afford the union." Viele Sr. stated "there was
going to be no union, and if we wanted a union we could
quit." The employees informed the Vieles that they wanted
hourly wages - they were paid a weekly salary - and
medical insurance. Viele Jr. declined to pay them by the
hour, instead of a salary, explaining it would involve too
much paperwork and necessitate additional personnel but
told them they would receive a weekly salary increase of
$10. Regarding their request for medical insurance, Viele Jr.
stated if he had known of this he would have gotten it for
them and, either Viele Jr. or Viele Sr. stated that the
Company would try to get the employees health benefits
and would talk with an insurance company about it that
to one another in the warehouse following the visit of the union representa-
tives but deny they made the remarks attributed to them by Luna Luna
impressed me as the more reliable and trustworthy witness.
5 As indicated, supra Viele Sr. had previously informed McKiernan that
the truckdnvers were no longer employed by Respondent.
6 Viele Sr. and Viele Jr. testified Luna was not told to leave the premises,
as I have found supra but was present with the other truckdnvers at the above
meeting . Hadden and Warner do not place Luna at this meeting and the
testimony of Luna and McKiernan is to the effect that during the time the
Vieles were talking with the other drivers that Luna was waiting outside with
the union representatives . Luna , McKiernan , Hadden, and Warner impress
me as the more credible witnesses.
1942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afternoon . At this point Viele Jr. asked Hadden what he
wanted to do and stated that Hadden had not worked very
long for the Company - he had worked less than I month
- so Viele Jr . did not know much about him but stated that
"as far as [Luna ] was concerned he was out, because they
had been good to him and he had done certain [things] like
wrecking the truck or stealing." Viele Jr. asked Hadden,
"do you want the Union Lee, or are you going to go work
for us without the Union ." Hadden answered , "I want the
Union." Viele Jr. answered, "okay, I'll mail you you're
check ," whereupon , Hadden left the office,7 leaving War-
ner and Guerra who indicated that they would remain and
go to work . 8 However, Warner immediately changed his
mind and left the warehouse and joined Luna , Hadden, and
the union representatives in front of the Respondent's
premises where they commenced to picket with signs
stating, "Viele & Sons Unfair." This picketing continued
for slightly over a week.
Later that morning Luna, at Viele Jr.'s request , entered
the Company 's outer office for a talk with Viele Jr.9 Also
present was Viele Sr. Viele Jr . began by stating, "Frank I
don't know why you did this . You know we are all part of a
family, and we like to keep it that way." Luna remained
silent. Viele Jr . stated he wanted to explain what the
Company had "come up with " for the truckdrivers and told
Luna the company would grant them a $ 10-a-week pay
raise with shorter hours and was considering giving them
medical insurance . Viele Jr. asked Luna to return to work,
stating the Vieles felt he was doing very well as a
truckdriver and pointed out that the company had contin-
ued to employ him even though it had unproven suspicions
that he had been stealing and could have fired him when he
wrecked a company truck . Luna emphatically denied he
was stealing and acknowledged he had wrecked a company
truck , but reminded Viele Jr. that he had paid the company
for the damage out of his own pocket . Viele Jr. changed the
subject , stating "Well , you know , we dust can 't have the
Union in here ." Luna stated the company 's promise to
institute a medical insurance program sounded good and
asked if it would also pay the employees for sick leave and
holidays . Viele Jr . answered he would have to see what
other companies did about paying employees for sick leave
but that Respondent could not pay them for holidays. Luna
stated he did not feel paid holidays were a necessity and
r The above description of what was stated by the Vieles to Hadden,
Warner, and Guerra , prior to Hadden 's leaving the office , is based on a
composite of the credible testimony of Hadden and Warner which in
significant matters is not inconsistent Hadden and Warner, in particular
Hadden , impressed me as more trustworthy and reliable witnesses than Viele
Sr or Viele Jr Moreover, the Vieles' testimony about this meeting is not
consistent in significant respects Thus, Viele Jr specifically denied that
either himself or his father told the truckdnvers the company was not going
to have a union and that anyone who wanted to join a union was terminated
or that either one of them used words to that effect Viele Sr., on the other
hand , admits that either himself or Viele Jr , or both of them , could have told
the drivers "look we 're not going to have a union and if you guys want a
union get out" or used words to that effect
8 The above description of what took place after Hadden 's departure
from the meeting is based on the undemed testimony of Viele Jr and Viele
Sr
9 1 reject Warner's testimony that at this time all three of the picketing
employees - Luna, Warner, and Guerra - were summoned to the
Company's office one by one to talk with the Vieles This is contrary to the
Vieles' testimony and contrary to the testimony of Luna , Hadden, and
McKiernan
that he would like to talk with Hadden and Warner. Viele
Jr. informed Luna that this was the Company's proposal
which Luna could accept and return to work but that
Respondent was not going to have "no union." Viele Sr.
also told Luna, "you know Frank , what I could do is just
close up the place for a month and move to Las Vegas,"
where he had just purchased a home , but said he would not
do that , rather he would stay and continue to operate the
business . Luna ended the conversation by stating he would
talk with Hadden and Warner and return and let the Vieles
know if they were going to return to work or were going to
remain outside.10
Luna left the office and went immediately to where
Hadden and Warner were picketing at the entrance to the
Company's yard and informed them , as well as Union
Representative McKiernan, about the Company 's propos-
als including the fact that Respondent had indicated that if
the employees wanted to return to work they were free to do
so. After discussing the matter , Luna , Hadden , and Warner
decided to reject the Respondent 's proposal and continued
to picket the Company for approximately 1 week.
On the same day, December 2, the Union filed the unfair
labor practice charge in this case charging Respondent with
discharging Luna, Hadden , and Warner on December 2
because of their union activities.
3. Events postdating December 2, 1975
On December 4, Respondent's attorney sent the follow-
ing identical letter to each one of the alleged discrimina-
tees:
This is to inform you that Viele & Sons never has
discharged you and at all times you have been free to
return to work . You are free to return to your jobs with
all the same wages , terms , and conditions of employ-
ment that you were receiving when you walked off the
job.
Please notify Mr. Viele by December 15, 1975, if you
are returning to work.
All three of the alleged discrimmatees advised Respondent
they were returning to work . On December 15 Warner was
reinstated to his former job as a truckdriver . Luna and
io The above description of what took place between the Vieles and Luna
and the fact that Viele Sr. was present is based on Luna's testimony . Luna's
testimony indicates that Viele Jr., in large part , related to Luna the proposals
made previously to the other truckdrivers . Viele Jr., however, presents a
different version . He testified that in speaking to Luna he "kind of went over
what we'd already talked about" and asked Luna, "what's the problem," and
pointed out that the Company had done more things for him than anyone
else in its employ and told him that where it could improve things it would do
so to the best of its ability . Luna, according to Viele Jr., adamantly insisted
that the company sign a union contract which Viele Jr told him it could not
afford , at which point, in answer to Viele Jr .'s inquiry - "what are you going
to do" - Luna stated he was going to walk back out Viele Sr failed to
corroborate Viele Jr.'s testimony for the reason, he testified , that he was
present only very briefly at the start of the conversation whereupon he left
the office without uttering one word . Luna, however, places Viele Sr at this
meeting for its entirety and, as described, supra, testified Viele Sr . made at
least one remark . Viele Jr. was unable to recall that his father left the room
prior to the end of the meeting and did not corroborate his assertion that he
did not speak , instead testifying Viele Sr. "did not say too much ." Of the
three witnesses who testified about this meeting Luna impressed me as the
most trustworthy and reliable, hence, I have credited his version.
VIELE & SONS, INC. 1943
Hadden , as discussed, infra, were reinstated as warehouse-
men rather than to their former jobs as truckdrivers.
On December 5 the Union filed a representation petition
with the Board in Case 2I-RC-14453 seeking to represent a
unit of Respondent 's employees at the location involved in
this case.ii
Finally, it is undisputed that each of Respondent's four
truckdrivers received a $25-a-week wage increase effective
December 15.
4. Walls' discharge
On December 3 Viele Sr. interviewed Douglas Walls and
that same day Walls began work for Respondent as a
truckdriver. During the interview which took place in the
Company's office Viele Sr. asked if Walls was a union
member and how he felt about a union. Walls told him he
was opposed to unions. Walls thereafter engaged in no
activity on behalf of the Union. Quite the contrary, during
his first week of work, he walked through the employees'
picket line and, at all times dunng his employment, sought
to convince the Vieles that the last thing he desired was
union representation. General Counsel contends that on
one occasion, March 22, 1976, Walls told two of his fellow
employees he was proumon and that this information was
immediately brought to the attention of the Vieles.
Walls testified that on March 22, 1976, after work he
visited a restaurant with fellow drivers Warner and Guerra
and that during the course of their visit the conversation
turned to their jobs and Guerra indicated he thought that
once the Union was out of the way that Viele Sr. would
grant the employees improved wages and other benefits.
Walls expressed his skepticism, stating that inasmuch as the
Vieles treated Guerra better than the other employees that
Guerra might receive improved benefits but that Walls
doubted whether the others would benefit from the Vieles'
generosity. Guerra answered that Walls' observation might
be true but pointed out that he (Guerra) was the Company's
senior employee, having worked there for about 5 years.
Later that evening, after Guerra left, and Warner was
driving Walls home, Walls testified that he told Warner he
did not think the Vieles would grant any of the employees,
other than Guerra, improved benefits of employment and
that he intended to vote for the Union. Warner, according
to Walls, replied that he felt the same way and would also
vote for the Union.
Two days later, March 24, 1976, shortly before he left the
warehouse to make his daily deliveries, according to Walls,
he was confronted by Viele Jr. who stated, "I heard that
your feelings have changed towards the company and that
you are going to vote for the Union." Walls replied this was
not true and asked where Viele Jr. had gotten this
information. Viele Jr. answered that its source was unim-
portant but that if the Vieles found out it was true that
Walls would be terminated. Walls again denied the accusa-
tion and went to work. Viele Jr. specifically denied making
these comments or using words similar to those attributed
to him by Walls. In his manner and demeanor Viele Jr.
11 The processing of this petition was blocked by the previous filing of the
instant unfair labor practice charges and it was ultimately withdrawn by the
Union, with the Board's approval, on April 14, 1976
12 Walls testified that no one from the Company spoke to him about the
impressed me as a more reliable and trustworthy witness
than Walls, hence, I have credited his denial. Moreover, on
cross-examination Walls' credibility was tainted somewhat
when it was established that in his prehearing affidavit
submitted to the Board shortly after the alleged conversa-
tion that Walls omitted that portion of his testimony
wherein Viele Jr. supposedly told him that he had learned
that Walls intended to vote for the Union.
Walls was discharged on Friday, March 26. The events
pertinent to an evaluation of the reason advanced by
Respondent to justify the discharge are set out herein.
Respondent is a wholesale grocery distributor whose
truckdrivers deliver to restaurants, hamburger stands, etc.
Each driver uses a different truck every few days. They
have regular routes and during the time material herein the
San Fernando Valley route was assigned to Walls who
delivered in this area each Wednesday. Walls admits that
on Wednesday, March 3, 1976, he followed his normal
schedule. He delivered in the San Fernando Valley and, in
particular, made a delivery in Granada Hills, California, a
community located in the San Fernando Valley.
On March 10, 1976, Respondent's office clerical, Nancy
Enfield, received a telephone call from Mr. Corley, who is
the owner of the Granada Hills Liquor Store located in
Granada Hills, California. Corley told her that on March 3
one of Respondent's trucks hit a sign on his property. He
explained why he had not called about the matter earlier
and gave Enfield the location of his store and the license
plate number and vehicle number of the truck. The same
day Corley phoned Respondent's insurance broker, whose
phone number was communicated to him by Enfield, and
filed a claim with them over the damage done to the sign.
After talking with Corley on March 10 Enfield immedi-
ately told Viele Jr. about the phone call and asked him for
the name of the driver who, on March 3, had delivered
customers' orders in the area of the alleged accident. Viele
Jr. informed her that the accident took place on Walls'
route and indicated he would speak to Walls so that Enfield
could communicate with Respondent's insurance broker.
The same day or the next day Viele Jr. questioned Walls
who denied having been involved in any such accident.12
This is where the matter concerning the alleged accident
rested until about March 25 when Respondent's insurance
broker determined that the license number of the truck
allegedly involved in the accident reported by the Granada
Hills Liquor Store belonged to one of Respondent's trucks
which was covered by an insurance policy written by the
broker and determined that the claimant was seeking to
recover $900 to replace the sign pole damaged by the truck.
On March 25 the insurance broker phoned Viele Sr. and
notified him that Respondent's truckdrivers had been
involved in accidents for which there were claims of $250
and $900, respectively, and advised Viele Sr. to pay the
cheaper one rather than notify the insurance company
about both claims inasmuch as there was the danger that
the insurance company would increase his premium or
refuse to rewrite the policy. Viele Sr. knew about the $250
alleged accident prior to has discharge. However, I have credited Viele Jr 's
testimony, set forth above, inasmuch as Viele Jr. impressed me as the more
trustworthy witness on this point.
1944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claim which concerned an accident involving Warner
which Warner had reported to the Company . Viele Sr. had
not been notified about the $900 claim which involved the
damage to the Granada Hills Liquor Store 's sign . In this
regard Viele Jr . credibly testified that when Walls denied
having been responsible for damaging the store sign, Viele
Jr. had no reason to disbelieve Walls , so, rather than disturb
Viele Sr ., who is a very excitable person , decided to mention
the matter only if the insurance company's investigation
turned up evidence which indicated that Walls was not
telling the truth.
On March 25 , upon learning of this $900 claim, Viele Sr.
questioned Viele Jr. about the matter and was told that a
liquor store was claiming that one of their drivers had hit
and damaged its sign with a company truck . Viele Sr. asked
which one of Respondent 's drivers covered that particular
route . Viele Jr. informed him that it was Walls ' route but
that Walls had denied responsibility . Viele Sr . at this point
told his son to discharge Walls . The only reason he decided
to do this , Viele Sr. testified , was "because [Walls] hit the
sign without reporting it."
On Friday , March 26, at the end of the workday , Viele Jr.
handed Walls his paycheck - it was payday - and
informed him he was terminated because he had an
accident and failed to report it . Walls denied this and
pressed Viele Jr. for specific information about the accident
which Viele Jr. refused to furnish , stating there was no need
to go into the matter.
B. Conclusionary Findings and Discussion
1. The independent violations of Section 8(a)(1)
of the Act
(a) On December 2, 1975, immediately after learning that
its four truckdrivers had signed cards authorizing the
Union to act as their bargaining representative and that the
Union was demanding recognition as the employees'
bargaining representative , Respondent engaged in certain
conduct which reasonably tended to interfere with , restrain,
and coerce its employees from exercising their statutory
right to support the Union , thus , violating Section 8(a)(1) of
the Act. This conduct which is described in detail , supra, is
set out briefly below.
( 1) Luna overheard Viele Sr . tell Viele Jr. that Viele Sr.
"might as well lock up the place, close up the place. These
guys ain't going to drive for us. Send them home." This
statement when considered in the context in which it was
voiced - Viele Sr . had dust learned the truckdrivers had
signed union authorization cards and was in the process of
telling his son that the Union had demanded recognition -
could only have been intended as a threat to discharge the
truckdrivers because of their union activities and could
only have been construed as such by Luna . Even if the
threat were unintentionally communicated to Luna, it
nonetheless constitutes a violation of Section 8(axl). Ford
Radio & Mica Corporation, 115 NLRB 1046, 1047 ( 1956),
affd . on this point 258 F .2d 457 , 460 (C .A. 2, 1958). Hertzka
& Knowles v . N.LR.B., 503 F .2d 625 , 628 (C .A. 9, 1974).
(2) Viele Sr . invited Guerra, Hadden , and Warner to quit
their employment with Respondent if they wanted union
representation . Stoutco, Inc., 180 NLRB 178 (1969).
(3) In an effort to discourage them from supporting the
Union, Viele Jr . promised employees Hadden, Guerra, and
Warner that they would receive a $ 10-a-week increase in
their salary and medical insurance . NLRB . v. Exchange
Parts Company, 375 U.S. 405 ( 1964).
(4) Viele Jr . interrogated Hadden about his union
sympathies - "do you want the Union Lee, or are you
going to work for us without the Union " - without any
legitimate purpose and without giving any assurances
against reprisal . Blue Flash Express, Inc., 109 NLRB 591
(1954).
(5) In an effort to discourage its employees from
supporting the Union , Viele Jr. promised Luna that
Respondent would grant the employees a wage increase of
$10 a week with shorter working hours and would consider
giving them medical insurance . N.L.RB. v. Exchange Parts
Co., supra.
(6) Viele Sr. told Luna that he could just close up the
business and move to another location . This statement
when considered in its context - at the time Viele Jr. was
attempting to dissuade Luna from supporting the Union -
constitutes a none-too-subtle threat that Respondent would
terminate its employees if they supported the Union.
I find that each of the above-described acts constitutes a
separate violation of Section 8(ax 1) of the Act.
(b) On December 3, 1975 , when Viele Sr. interviewed
Walls for a job , Walls was asked by Viele Sr . if he were a
member of a union and how he felt about union representa-
tion . This interrogation , which had no legitimate purpose
and was engaged in without any assurances against reprisal,
constitutes an additional violation of Section 8(a)(1) of the
Act. Blue Flash Express , Inc., supra.
(c) On or about December 15, 1975, Respondent's four
truckdrivers received a $25-a-week wage increase. General
Counsel contends that this increase was motivated by
Respondent 's desire to discourage the employees from
supporting the Union , hence, violates Section 8(a)(1) of the
Act. See N. L.RB. v . Exchange Parts Co., supra . I agree. I
recognize that Viele Sr. testified that the fact that the
truckdrivers had signed union authorization cards had
nothing to do with his decision to grant the increase and
further testified , in response to a leading question, that
during the normal course of business the truckdrivers were
scheduled to receive a pay raise . I have rejected this
testimony inasmuch as Viele Sr. did not impress me as a
trustworthy witness on this subject and Respondent offered
no evidence to establish that the truckdnvers were sched-
uled to receive a wage increase.13 On the other hand, the
record convincingly demonstrates that the wage increase
was motivated by Respondent 's desire to discourage the
truckdrivers from supporting the Union . The increase was
granted shortly after Respondent learned that its drivers
desired union representation and that their desire was in
part based on a dissatisfaction over wages. Respondent's
representatives promptly , as found supra, voiced their
13 To the contrary, Viele Sr was not able to recall when the truckdnvers due about December 15, 1975, I am convinced that Viele Sr. would have
had received a pay raise prior to the disputed raise If Respondent has a
policy of granting its employees periodic increases and such an increase was
been able to recall the date of his drivers' last increase.
VIELE & SONS, INC. 1945
opposition to union representation and promised the
truckdrivers a wage increase to dissuade them from
supporting the Union. Under these circumstances, it is
plain that the subsequent $25 wage increase was given to
fulfill this promise. Indeed, Viele Sr., when asked why he
granted the increase, testified, "they asked me for a raise.
People asked me for a raise or felt they were not making
enough money." Finally, if there is a doubt that the increase
was improperly motivated the doubt is removed by the
surreptitious manner in which the increase was paid. It was
not included in the drivers' paychecks but was paid out in
cash with no record apparently being kept by Respondent
of the transaction. I am convinced if this wage increase was
prompted by a legitimate business consideration that
Respondent would have treated the transaction in the usual
fashion and included it in the drivers' paychecks making
the usual payroll deductions.14
2. The violations of Section 8(a)(3) of the Act
(a) The discharges of Luna, Hadden, and Warner
General Counsel takes the position, as alleged in the
complaint, that on December 2, 1975, Respondent dis-
charged Luna, Warner, and Hadden and that they were
discharged because they desired union representation.
Respondent contends that these employees were not
discharged but voluntarily quit their employment to engage
in a strike on behalf of the Union for recognition. I am of
the opinion that a preponderance of the evidence establish-
es that Luna and Hadden were discharged because they
wanted union representation. In agreement with Respon-
dent I find that Warner quit his employment.
Regarding Luna the evidence, described in detail supra,
establishes that immediately after the Vieles learned he had
signed a union authorization card that Viele Sr. indicated
Luna had been ungrateful toward Respondent, whereupon,
Viele Jr. instructed Luna, "you're out. Get out. Get out."
This outburst was reasonably calculated to lead Luna to
believe he had been discharged, so, without any objection
from the Vieles, he left the premises. Shortly thereafter, on
the same morning, the Vieles indicated they believed Luna
had been discharged when Viele Jr., in the presence of Viele
Sr., as described in detail supra, informed the other
truckdrivers that so far as Respondent was concerned Luna
"was out" because he had acted ungratefully toward the
Respondent. Based on the foregoing I find that Respondent
discharged Luna. I further find that the circumstances -
the timing of the discharge coming hard on the heels of the
Union's demand for recognition and Respondent's knowl-
edge that Luna had signed a union authorization card,
Respondent's union animus , and Respondent's failure to
justify Luna's discharge - overwhelmingly establish that
Luna's discharge was motivated by his union activities and
sympathies. Accordingly, by discharging Luna Respondent
violated Section 8(a)(3) and (1) of the Act.
Regarding Hadden the evidence establishes, as described
in detail supra, that on December 2, 1975, following Luna's
discharge, the Vieles spoke to the other truckdrivers and, in
an effort to dissuade them from continuing to support the
Union, promised them a wage increase and medical
insurance. After outlining these benefits, Viele Jr., in the
presence of Viele Sr., asked Hadden "do you want the
Union Lee, or are you going to work for us without the
Union." When Hadden answered, "I want the Union,"
Viele Jr. replied, "Okay I'll mail you you're check." This
statement was reasonably calculated to lead Hadden to
believe he had been discharged, so, without any objection
by the Vieles, Hadden left the premises. Based on the
foregoing I find that Respondent discharged Hadden
because he turned down Respondent's proposed improved
benefits which were designed to dissuade him from contin-
uing to support the Union but instead informed Respon-
dent "I want the Union." By engaging in this conduct
Respondent violated Section 8(a)(3) and (1) of the Act.
Regarding Warner there is insufficient evidence to
establish that he was discharged. As described in detail,
supra, after Hadden's discharge Warner and Guerra indi-
cated to the Vieles they would continue to work but, shortly
thereafter, Warner changed his mind and departed from the
premises . Warner joined Hadden and Luna and picketed
Respondent's premises . There is no evidence that the Vieles
told Warner he was discharged or used words which would
have reasonably led him to believe that his tenure had been
terminated. To the contrary, Warner testified that the
Vieles did not lead him to believe he was discharged, rather
Warner testified, "I walked out the gate on my own
accord." Nor does the record establish that Warner quit
because of any unlawful restriction on his statutory right to
support the Union, rather Warner testified that the reason
he quit work was because Respondent refused to recognize
the Union as the employees' bargaining representative.
Under these circumstances the record does not preponder-
ate in favor of a finding that Warner was discharged or
discharged constructively, rather I find that Warner simply
quit and that therefore his departure did not violate Section
8(a)(3) and (1) of the Act.
In concluding that Luna and Hadden were unlawfully
discharged on December 2, 1975, I have given careful
consideration to the fact that Luna, Hadden, Guerra, and
Warner had agreed that if Respondent refused on Decem-
ber 2 to voluntarily recognize the Union that they would all
quit work and engage in a strike for union recognition.
Warner, as I have found, chose to quit work pursuant to
this agreement, however, Guerra did not honor the agree-
ment and remained at work. Whether Luna and Hadden
would have quit work is highly speculative. By abruptly
discharging them because of their union sympathies Re-
spondent has made it impossible to determine what might
have happened absent their discharges. This uncertainty
must fairly rest on the wrongdoer (Respondent) rather than
the victims (Luna and Hadden). See Story Parchment Co. v.
Paterson Parchment Paper Co., 282 U.S. 555, 563, and
Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265,
(1946).
14 Viele Sr. testified that the wage increase was not included in the
employees ' paychecks "because of the Union I wasn't allowed to do that
That's what my understanding was. I couldn 't give them a raise "
1946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) The refusal to reinstate Luna to his former
position
Approximately 2 weeks after his discharge Respondent
reinstated Luna as a warehouseman. General Counsel takes
the position, as alleged in the complaint, that Respondent's
refusal to reinstate Luna to his former position as a
truckdriver was based on the same motivation which led to
his discharge, Respondent's animus toward him because of
his union sympathies. The facts pertinent to an evaluation
of this issue are set out herein.
In January 1974 Luna began work as a truckdnver for
Respondent and worked in this position continuously until
his discharge on December 2, 1975. The Union that same
day filed the charge in the instant case alleging in part that
Luna had been discharged because of his union activities.
On December 4, 1975, Respondent through its attorney
notified Luna by letter that he was not discharged and
unconditionally offered him reinstatement "with all the
same wages , terms and conditions of employment that you
were receiving when you walked off the job," and asked
that he notify Respondent by December 15 if he was
returning to work. On Friday, December 12, Luna phoned
Respondent stating that he had received its letter and
intended to return to work Monday, December 15. He was
informed there was no work for him that day but to report
for work Tuesday. On Tuesday, December 16, Luna arrived
at the warehouse for work but was not allowed to enter the
premises . Viele Sr. asked him whether he had a valid
driver's license. Luna presented his driver's license, which
was a valid one, but Viele Sr. refused to allow him to start
work, stating that the company was waiting for some papers
from its insurance company. The next day, December 17,
Luna phoned the company and was told that the insurance
papers had arrived and he should come to work the next
day. On December 18 Luna, as instructed, reported for
work and was informed by Viele Jr. that he would not be
employed by Respondent as a truckdriver because Respon-
dent's insurance carrier had refused to insure him and the
only work available for him was about 5 or 6 hours of work
a day in the warehouse. For the next 3 weeks Luna worked
between 19 and 24 hours a week as a warehouseman and
thereafter, up to the date of this hearing, worked 40 hours
weekly doing warehouse work. He is paid $4.23 an hour.
While employed as a truckdriver Luna was paid a weekly
salary of $175 and averaged 60 hours of work a week. The
record establishes that if Luna had not been discharged or
had been reinstated as a truckdriver that on December 15,
1975, he would have received a $25 increase in his weekly
salary with the rest of the truckdrivers. The nature of
Luna's work as a truckdriver differs significantly from the
nature of the work he performs as a warehouseman.
The facts surrounding the insurance carrier's refusal to
include Luna in Respondent's insurance policy can be
'y "Here the continuance of [Luna 's ] employment [as a truckdnver ] after
the discovery of the [fact that Respondent 's insurance carrier would not
insure him ] was of such duration as to provide inescapable mdicia of
afterthought " N L R B v. Fairview Hospital, 443 F 2d 1217, 1219 (CA. 7,
1971)
16 On December 2 Viele Sr ., at the same time Luna was notified of his
discharge by Viele Jr, mformed Luna that he considered him to be
ungrateful , declaring, "after all I 've done for you " The same day Viele Jr, in
briefly stated. In 1974 Luna was involved in an accident
while driving one of Respondent's trucks. The truck
suffered substantial damage and Luna was at fault. Viele
Sr. held Luna responsible for the accident and Luna
reimbursed the Company for the damage. As a result of this
accident Respondent' s insurance broker in November 1974
notified Viele Sr. that Respondent's insurance carrier had
refused to include Luna in Respondent's insurance policy.
Viele Sr. deliberately ignored this communication and
continued to employ Luna as a truckdriver from November
1974 until his discharge on December 2, 1975, even though
he was not covered by Respondent's insurance policy. This
circumstance indicates Viele Jr.'s refusal to reinstate Luna
to his former job of truckdriver because he was not covered
by the Company's insurance was simply an afterthought
voiced as an excuse to cloak the real reason.is And, when
the pretextual nature of Viele Jr.'s reason is considered in
the light of Luna's discharge by Respondent on account of
his union sympathies and in the light of Respondent's
hostility toward Luna because it felt that he should have
been grateful and not supported the Union because he had
not been discharged for wrecking a company truck,16 I am
convinced it establishes a strong prima facie case that in
refusing to reinstate Luna to his position as a truckdriver
but instead demoting him to warehouseman that Respon-
dent was motivated in significant part by his union
sentiments rather than by a legitimate business consider-
ation.
The reason advanced by Viele Sr. at the hearing to justify
Respondent's refusal to reinstate Luna as a truckdriver in
my opinion is insubstantial and did not rebut the govern-
ment's prima facie case. Viele Sr.'s testimony on this subject
is self-serving in the sense that it is not suspectable of
corroboration rather it depends solely on the state of mind
of Viele Sr. who, in his bearing and demeanor, did not
impress me as a trustworthy witness when he testified about
his reason for not reinstating Luna to his former position as
a truckdriver. In addition, his testimony was not consistent
with the reason advanced by Viele Jr. who told Luna that
Luna would not be able to drive for Respondent because
Respondent's insurance carrier would not insure him. Viele
Sr., on the other hand, testified that he decided not to let
Luna drive "after I seen what happened with the police and
everything. I heard he was arrested so I don't want nothing
to do with the police." When asked specifically why he
decided that Luna could no longer be employed as a
truckdriver, Viele Sr. answered, "because of the police"
and, when asked to elaborate, testified, "because he had the
citations probably, that he would not take care of, and I
heard he had no driver's license and was driving without a
license and that was enough right there not to put him back
on the truck again."
Regarding the assertion that Luna had no valid driver's
license the record establishes, and Viele Sr. admits, that
the presence of Viele Sr., while attempting to dissuade the truckdnvers from
contmwng to support the Union told them that "as far as [Luna ] was
concerned he was out" because the Vieles had been good to hun even though
he had wrecked the truck and, later that day, Viele Jr. in the presence of Viele
Sr. while attempting to dissuade Luna from continuing to support the Union
acknowledged that Luna was doing very well as a truckdriver but pointed out
to him that the company had retained him in its employ even though he
could have been discharged for wrecking a company truck
VIELE & SONS, INC.
prior to the time Luna was reinstated Viele Sr. knew that
Luna had a valid license which authorized him to drive
Respondent's trucks. Nor is there a scintilla of evidence
that Luna during his employment with Respondent was
driving without a valid license.
Regarding the reference to the "police," the record
establishes that during 1974 Luna received about three
traffic citations. One for driving his auto with an open
container of beer. One for driving without his license and
another for improper parking. Luna ignored these citations
and on December 4, 1975, a deputy sheriff for the county of
Los Angeles arrested him for these outstanding traffic
citations. The arrest was made while Luna was picketing
outside of Respondent's premises. Viele Jr. informed his
father about the arrest.
Respondent acknowledges that Luna's misconduct for
which he was arrested does not reach the level of either a
felony or even a serious misdemeanor but argues that "the
fact of the matter is that all of a sudden this uninsurable
driver had been picked up by the police, and, in Viele's
mind . . . it was a police situation. No longer could he take
a chance." As I have indicated previously, I carefully
observed Viele Sr. when he testified about this matter and
am of the view that he was not a trustworthy witness when
he explained his state of mind. To the contrary, I am of the
opinion that all of the circumstances - the insubstantial
reasons advanced by Respondent to justify its refusal to
reinstate Luna as a truckdnver, the lack of consistency in
the reasons advanced by the Vieles, the fact that for over 1
year Luna was allowed to drive Respondent's trucks even
though Respondent knew he was not covered by its
insurance policy, and the fact that Respondent abruptly
decided he could no longer drive only after discharging him
for his union sympathies and only after it had indicated
that Luna had been ungrateful for supporting the Union
because Respondent had not discharged him for wrecking a
company truck in 1974 - establish that Respondent's
demotion of Luna from truckdriver to warehouseman was
motivated in significant part by a desire to punish him for
supporting the Union, hence, by engaging in this conduct
Respondent violated Section 8(a)(3) and (1) of the Act.
(c) Walls' discharge
General Counsel argues Respondent discharged Walls
because it believed he was prounion. I disagree. The
evidence does not preponderate in favor of a fording that
Walls' discharge was unlawfully motivated.
The record does not establish Respondent thought Walls
was a union adherent. Walls engaged in no union activity
but, quite the opposite, when he was hired told Viele Sr. he
was opposed to union representation and during the first
week of his employment refused to honor the employees'
picket lines. Thereafter Walls sought to convince the Vieles
that the last thing he desired was union representation.
General Counsel takes the position that although this is true
that on March 22, 1976, 4 days before his discharge, Walls
17 I recognize that Walls' testimony concerning his March 22 conversa-
tion with Guerra and Warner is undemed However Walls did not impress
me as being an entirely reliable witness and Guerra and Warner who were
called as witnesses by the General Counsel were not asked to corroborate his
testimony
1947
told employees Guerra and Warner that he was prounion
and one of these employees informed the Vieles. An
evaluation of the evidence relied on by the General
Counsel, set out in detail supra, reveals that Walls only
indicated to Warner that he was prounion.17 Warner, who
informed Walls that he was also a union adherent, signed a
union authorization card and is an alleged discriminatee in
this case and on December 2, 1975, quit work in support of
the Union's demand for recognition. Under the circum-
stances it is highly unlikely that Warner informed the Vieles
that Walls stated he was a union adherent. In any event, the
Vieles credibly testified that no one informed them that
Walls was proumon.
Based on the foregoing I find that the evidence is not
sufficient to establish that when Respondent discharged
Walls it believed he was a union adherent. Moreover,
Respondent had a plausible reason for discharging Walls.
As described in detail, supra, Viele Sr. had reason to believe
that Walls while driving a company truck was involved in a
costly accident which he failed to report. For all of these
reasons I conclude that the record does not establish that
Walls' discharge was unlawfully motivated as alleged in the
complaint, and shall recommend that this allegation be
dismissed.18
(d) The refusal to bargain
On December 2, 1975, Union Representative McKier-
nan, as described in detail supra, spoke with Viele Sr. and in
effect demanded that Respondent recognize the Union as
its employees' collective-bargaining representative. Viele
Sr. refused. The parties agree that Respondent's truckdriv-
ers and warehousemen constitute a unit appropriate for
the purposes of collective bargaining. Respondent's payroll
records indicate that on December 2 it employed four
truckdnvers and five warehousemen. Truckdrivers -
Luna, Warner, Guerra, and Hadden. Warehousemen -
Wood, Jenson, Oertel, Joe Viele, and Jim Viele. Four of the
nine - Luna, Guerra, Warner, and Hadden - had signed
valid union authorization cards designating the Union as
their exclusive bargaining representative. The parties agree
that six of the nine truckdrivers and warehousemen are
included within the appropriate unit. The General Counsel
takes the position that the remaining three - Oertel, Jim
Viele, and Joe Viele - should be excluded because Oertel is
a casual employee who lacks a community of interest with
the other unit employees and that Jim and Joe Viele are
either not employees within the meaning of Section 2(3) of
the Act or lack a community of interest with the other unit
employees. The evidence pertinent to this contention is set
forth and evaluated herein.
Respondent is a closely held family corporation which
operates a wholesale grocery business. Viele Sr. owns 50
18 In view of this conclusion I have not considered Respondent's
alternative defense to Walls' discharge which is based on the fact that Walls
and Respondent, with the approval of the Board, entered into a settlement
agreement whereby Respondent paid Walls a sum of money and Walls
withdrew the unfair labor practice charges he had filed against Respondent
1948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percent of the corporate stock and his wife owns the
remainder.19 Viele Sr. is president and his son , Viele Jr., is
vice president .20 Viele Sr . is in charge of and actively
manages the business . Viele Jr. is the warehouse supervisor.
Viele Sr. and Viele Jr. constitute the company's entire
supervisory staff.
Jim Viele and Joe Viele, whose statuses are in dispute, are
the sons of Viele Sr. and the brothers of Viele Jr. Jim Viele
is 19 and Joe Viele is 17. They live at home with their
parents . Jim Viele attends college on a part-time basis and
Joe Viele is a high school student.
Joe Viele works in the warehouse after high school. He
works 6 hours a week and receives an hourly rate of pay
comparable to the other part-time warehousemen. He
arranges his own work schedule and works on an irregular
basis. If football practice or some other activity conflicts
with work Joe Viele does not come to work. Also he tells the
other warehousemen what to do and assigns them work. In
this respect he acts as a conduit relaying instructions to the
others from his brother, warehouse supervisor Viele Jr.
Jim Viele works a 40-hour week in the warehouse. He is
the Company's only full-time warehouseman and is paid a
salary , whereas , the other warehousemen , all of whom are
employed part time, are paid an hourly rate of pay.
In Foam Rubber City # 2 of Florida, Inc., d/b/a/ Scondia,
167 NLRB 623 (1967), the Board held that employees who
were children of corporate principals; i.e., individuals
owning 50 percent or more corporate stock, were not
statutory employees under Section 2(3) of the Act. Section
2(3) provides in part that "the term 'employee' . . . shall
not include . . . any individual employed by his parent
.... In so holding the Board recognized that the
corporation technically was the employer of the employees
but found that "for all practical purposes [the corporation
principals] are the real employers of the employees" and
that it would be "unrealistic" not to apply Section 2(3) to
these individuals. Id. at 624. See also Cerni Motor Sales,
Inc., 201 NLRB 918 (1973). Even prior to the Foam Rubber
City case the Board took the position that in cases involving
children employed by a corporation wholly owned by their
parents that the children were excluded from the definition
of "employee" under Section 2(3) as individuals employed
by their parents. See Bridgeton Transit, 123 NLRB 1196,
1197 (1959). In the instant case the two individuals in
dispute, Jim and Joe Viele, are employed by a corporation
wholly owned by their parents and one of the parents who
owns 50 percent of the stock actively manages the business.
Under these circumstances I find that Jim Viele and Joe
Viele are not employees within the meaning of Section 2(3)
of the Act. Accordingly, I shall exclude them from the
appropriate unit.
Assuming arguendo that Jim Viele and Joe Viele are
statutory employees, see N. L R. B. v. Caravelle Wood
Products, Inc., 466 F.2d 675, 677-678 (C.A. 7, 1972) where
the court rejected the Board's interpretation of Section 2(3).
I am of the opinion that the record establishes that they
have a community of interest separate from that of the
19 Prior to August 1975 the business was a proprietorship owned solely by
V iele Sr
20 The record is silent as to the names of the other corporate officers or
the names of the board of directors
other unit employees and should be excluded from the unit
on this basis.
I note first that 50 percent of the Respondent's stock is
owned by Viele Sr., the father of Joe and Jim Viele, and the
remainder is owned by their mother, Viele Sr.'s wife. Under
these circumstances, the interests of the Viele brothers "as
members of the governing family may well outweigh [their ]
interests as [employees ] of the corporation and, to that
extent, [their] interests may be entirely different from the
interests of the other employees whose sole stake in the
corporation is that they work there." Parisoff Drive-In
Market Inc., 201 NLRB 813, 814 (1973).
I also note that Joe and Jim Viele's mother and father not
only own the corporation but their father is president and
actively manages the business. Moreover, Viele Jr., the
brother of Joe and Jim Viele, is vice president and
warehouse supervisor who directly supervises the compa-
ny's employees. In these circumstances:
It is a virtual certainty [Joe and Jim Viele] would get a
more attentive and sensitive ear to their day-to-day and
long-range work concerns than would other employees.
While this accessibility to management may not always
result in easily identifiable special privileges or favor-
able working conditions,[ 211 the fact that they have this
peculiar access gives them a status and an area of
interest not shared by the rest of the employees.
[Parisoff Drive-In Market Inc., supra at 814.]
Finally, I consider relevant that Jim and Joe Viele are
minors who attend school and live at home with their
parents. As the Board has indicated in a similar situation:
... where children are still living with parents they
are also dependent upon them, and with dependence
there is a considerable potential for influence. More-
over, . . . children living with a parent who is active in
managing the corporation can reasonably be expected
to be exposed to information about personnel problems,
labor relations dealings, and even corporate profitabili-
ty. In some of the above respects they may be
comparable to confidential employees, whom we tradi-
tionally exclude from the unit. [Parisoff Drive-In Market
Inc., supra at 814.]
Consequently, for the foregoing reasons, I conclude that
the interests of Joe Viele and Jim Viele are more closely
allied with those of management than those of the other
unit employees. Parisoff Drive-In Market Inc., supra; Cerni
Motor Sales, Inc., supra; also see N.LRB. v. Caravelle
Wood Products Inc., supra at 679, and 504 F.2d 1181 (C.A.
7, 1974). Accordingly, I shall exclude them from the
appropriate unit.
Regarding Oertel, who the General Counsel urges should
be excluded as a casual employee, the record reveals he was
a trade school student employed part time in the Compa-
ny's warehouse from about November 1, 1975, until June
1976 at which time he graduated from school and apparent-
21 Here, Joe Viele arranges his own work schedule and acts as a conduit
between his brother - Warehouse Supervisor Viele Jr - and the other
warehousemen.
VIELE & SONS, INC.
ly secured full-time employment with another employer. On
2 or 3 days a week Oertel helped the other warehousemen
load the company's trucks. He had no regular work
schedule but instead phoned the Company whenever he
was available for work. Oertel worked an irregular schedule
in order to correlate his working hours with his schooling.
However, he regularly worked a substantial number of
hours, 10 to 14 hours each week. Oertel also performed
duties similar to the other part-time warehousemen, who
the General Counsel concedes are included in the unit, and
shared the same supervision, working conditions, and
similar wages . Under the circumstances, despite the ab-
sence of regularly assigned hours, Oertel should be consid-
ered as a regular part-time employee with a sufficient
community of interest to entitle him to be included within
the unit. Westchester Plastics of Ohio, Inc. v. N.L.R. B., 401
F.2d 903 (C.A. 6, 1968) enfg. 165 NLRB 219 (1967).
Based on the foregoing I find that on December 2, 1975,
the Union possessed valid authorization cards signed by
four of the seven unit employees and that on the same date
the Union made a lawful demand for recognition on
Respondent in the appropriate unit which Respondent
declined. I further find that Respondent's refusal, on and
after December 2, to recognize and bargain with the Union
constitutes a violation of Section 8(a)(5) and (1) of the Act
because the record establishes that as of December 2, 1975,
Respondent embarked on a clear course of unlawful
conduct and engaged in sufficient unfair labor practices
which tend to undermine the Union's lawfully established
majority status and make impossible the holding of a fair
election . See generally N.L.R.B. v. Gissel Packing Co., Inc.,
395 U.S. 575 (1969), and Trading Port Inc., 219 NLRB 298
(1975). In concluding that a remedial bargaining order is
warranted I have taken into account the following circum-
stances:
As described in detail, supra, as soon as Respondent was
confronted with the Union's demand for recognition and
learned that its truckdrivers had signed union authorization
cards, Respondent promptly embarked on an unlawful
program designed to eliminate employee support for the
Union. In violation of Section 8(a)(1), Respondent threat-
ened its truckdrivers with discharge if they continued to
support the Union. Respondent's president, Viele Sr., in the
presence of truckdriver Luna, told warehouse supervisor,
Viele Jr., that he would discharge the truckdrivers because
of their union activities and told Luna that he would close
the business and discharge the employees if they supported
the Union. Viele Jr. invited truckdrivers Guerra, Hadden,
and Warner to quit their employment if they wanted union
representation. Also, in violation of Section 8(a)(1), Viele
Jr. coercively interrogated truckdriver Hadden about his
union sympathies and Viele Sr. did the same to truckdriver
Walls.
Not only did Respondent threaten its truckdrivers with
the aim of discouraging them from continuing to support
22 1 recognize Respondent's unfair labor practices involved conduct
which was directed toward the Company's truckdnvers who constitute a
majority of the unit employees and who had all signed union authorization
cards. Nevertheless, considering the small size of the Company's business
and the nature and extent of the unfair labor practices - threats, promises of
benefits , a wage increase , two discharges , and a refusal to reinstate - I am of
the opinion that the unfair labor practices reached the ears of the other unit
1949
the Union, but it deliberately embarked on a course of
action designed to convince them that their demands would
be met in direct dealing with Respondent and that union
representation would in no way be advantageous to them.
As described in detail, supra, in violation of Section 8(a)(1),
Viele Sr. and Viele Jr. met with the drivers and in effect
proposed that they refrain from seeking union representa-
tion and, in return, Respondent would grant them im-
proved wages and medical insurance. Thereafter, as it had
unlawfully promised, Respondent granted a substantial
wage increase. Such action not only is unlawful but was
calculated to put an end to the employees' desire for union
representation. The employees would not be likely to miss
the inference that the source of benefits so conferred is also
the source from which all future benefits must flow. Also,
and perhaps more important from the standpoint of a
remedy, the unlawful effects of this conduct cannot be
erased because the unlawful wage increase remains in effect
and it will serve as a constant reminder to the employees of
Respondent's use of economic weapons to defeat the
Union. Moreover, the wage increase must, of necessity,
have a strong coercive effect on the employees' freedom of
choice, serving as it does to eliminate, by unlawful means
and tactics, one of the reasons which the truckdrivers
sought union representation.
Any doubt as to the appropriateness of a bargaining
remedy is removed by Respondent's discharge of truckdriv-
ers Luna and Hadden because of their union sympathies
and activities. These unlawful discharges were calculated to
carry a message which could not have been, lost on the other
employees in the bargaining unit.22
In connection with the foregoing, Respondent's reinstate-
ment of Hadden and Luna does not eradicate the effect of
their unlawful discharges. See W & W Tool & Die
Manufacturing Co., 225 NLRB 1000 (1976). An employer's
demonstrated willingness to employ extreme measures to
defeat a union cannot help but to have a lasting and telling
effect. Employees will certainly understand and remember
the harsh treatment visited on them as a result of asserting
their rights and may draw back from again asserting those
rights. This is especially true in the instant case where, in
violation of Section 8(a)(3) and (1), Respondent has refused
to reinstate Luna to his former position as truckdriver but
instead demoted him to warehouseman because of his
union activities and sympathies. By its unlawful refusal to
reinstate Luna to his former position and his demotion
Respondent has compounded the coercive effects of Luna's
initial unlawful discharge and forcefully reminded the other
unit employees of the extent it is willing to go to avoid
union representation. Respondent's unfair labor practices
committed against Luna by themselves are calculated to
have a deep and lasting effect on the other unit employees.
In view of the above and the entire record, I find that a
bargaining order is warranted in this case.23
employees and tended to discourage these employees from supporting the
Union. See General Stencils, Inc., 195 NLRB 1109, 1110 (1972), and Irving
Air Chute Company, Inc. v. N.LR B, 350 F 2d 176, 179 (C.A. 2, 1965)
23 Since Respondent's bargaining obligation accrued on December 2,
1975, its subsequent $25-a-week salary increase granted to its truckdnvers
unilaterally without bargaining with the Union constitutes an independent
violation of Sec. 8(a)(5) of the Act. NLRB v Benne Katz, d/b/a
(Continued)
1950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that Respondent cease
and desist therefrom and take certain affirmative action
which I find to be necessary to remedy and remove the
effects of the unfair labor practices and to effectuate the
policies of the Act.
For the reasons discussed above, I find the imposition of
a bargaining order is essential to remedy the unfair labor
practices and to protect the statutory rights and interest of
the employees. Because of the scope and extent of the
unfair labor practices found herein, I shall recommend a
broad cease-and-desist order.
Having found that Respondent discriminatorily dis-
charged employee Leroy Hadden, I shall recommend that
Respondent make him whole for any loss of earnings he
may have suffered by reason of such discrimination, by
payment of a sum of money equal to that which he
normally would have earned as wages from the date of the
discharge, December 2 to December 15, 1975, the date he
was reinstated, with backpay computed in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and with interest computed thereon as
prescribed by the Board in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Having found that Respondent discriminatorily dis-
charged employee Frank Luna and discriminatorily refused
to reinstate him to his former position as truckdriver, I shall
recommend that Respondent offer to Frank Luna immedi-
ate and full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered, by payment to him of a sum of money equal to
that which he would normally have earned as wages from
the date of his discharge, December 2, 1975, to the date of
Respondent's offer to reinstate him, together with interest
thereon. Backpay and interest shall be computed in the
manner prescribed above.
In drafting the portion of the remedy ordering Respon-
dent to reinstate Luna to his former position of truckdriver,
I have carefully considered that Respondent's insurance
policy does not cover Luna, whom the insurance carrier
regards as uninsurable, and that in order for Luna to drive
Respondent will have to pay a higher insurance premium
and assign him to a specific truck. Nevertheless, for the
reasons set forth herein I am of the opinion that the policies
of the Act dictate that Respondent be required to reinstate
Luna to his former position of truckdriver as part of the
remedy for unlawfully discharging Luna and then unlaw-
fully demoting him to thejob of warehouseman.
Williamsburg Steel Products Co, 369 U S 736 ( 1962) Also violative of Sec.
8(aX5) is Respondent 's refusal to furnish the Union with information which
is necessary and relevant to the Union in its role as the employees ' exclusive
bargaining representative In this regard the Union by letter dated April 27,
1976, which Respondent did not answer , requested the following informa-
tion The names of the unit employees with theirjob classifications , dates of
hire , and employment status, a list of existing employment benefits; and the
Company's personnel policies and work rules See NLRB v Acme
Industrial Co, 385 U S. 432, 435-436 (1967)
24 This was the situation involved in the case of discnmmatee Hadden
The normal remedy for a discharge in violation of the Act
is an order requiring the unlawfully discharged employee to
be immediately reinstated to his or her former position with
backpay. To avoid such an order a respondent must prove
that the discriminatee would have been terminated from his
former position at some later date for nondiscriminatory
reasons had he not been unlawfully discharged or engaged
in "the kind of flagrant misbehavior" rendering him
"clearly unfit" for reinstatement to his former position.
N.LR.B. v. Magnusen d/b/a/ North Star Refrigerator Co.,
523 F.2d 643,646, fn. 4 (C.A. 9, 1975).
In the instant case, despite the problems concerning
Luna's insurability, Respondent for over 1 year allowed
hum to drive its trucks. There is not a scintilla of evidence
that during the normal course of business Respondent
would have ceased using Luna as a truckdriver. To the
contrary, in view of the long duration during which Luna
was allowed to drive despite his lack of insurance coverage,
I can only presume that this state of events would have
continued indefinitely. In any event, when viewed most
favorably to Respondent, the answer to the question of
whether during the normal course of business Luna would
have been terminated from his position of truckdriver or
demoted from truckdriver to warehouseman because he
was not covered by Respondent's insurance is an uncertain
one and established principles dictate that the burden of
that uncertainty must fairly rest on the wrongdoer (Respon-
dent) rather than the victim (Luna). Story Parchment
Company v. Paterson Parchment Paper Company, 282 U.S.
555, 563 (1931), and Bigelow v. RKO Radio Pictures, Inc.,
327 U.S. 251, 265 (1946). Nor does this case involve the
kind of flagrant or egregious misbehavior sufficient to deny
the usual order of reinstatement. And, it is not a case where
Respondent only after the discharge learned of facts which
made Luna unemployable as a truckdriver.24 Respondent
knew its insurance policy did not cover Luna yet allowed
him to remain in its employ as a truckdriver. For these
reasons I am of the opinion that even though Respondent's
present insurance carrier has refused to issue an insurance
policy covering Luna that it does not warrant withholding a
reinstatement order such as the Board would ordinarily
issue to remedy an unlawful discharge like the one found
here. Stafford Trucking Inc., 150 NLRB 1036, 1048-50, 1051
(1965) (discharge of Lowitz).
In so concluding I have also carefully considered that on
December 2, after Luna was discharged, he was called back
into Respondent's office and asked to return to work. This
offer of reinstatement was not sufficient to toll Respon-
dent's reinstatement or backpay obligation inasmuch as the
offer was a part and parcel of Respondent's unlawful effort
to discourage Luna and the other truckdrivers from
continuing to seek union representation and was condi-
tioned on the drivers withdrawing their support from the
who was also reinstated as a warehouseman rather than to his former
position as a truckdnver. Hadden , who started working for Respondent less
than I month before his discharge , previously had received seven motor
vehicle citations, some of which involved moving violations . Hadden
neglected to inform Respondent about his history of traffic violations, and
Respondent for the first time learned of these traffic citations only after
Hadden's discharge Under these circumstances , the General Counsel does
not contend that Respondent's failure to reinstate Hadden to his former
position of truckdriver is unlawful or that to remedy Hadden's unlawful
discharge Respondent must reinstate him to his former position
VIELE & SONS, INC.
Union. On this occasion Viele Jr., in the presence of Viele
Sr., as described in detail supra, in an effort to dissuade
Luna, Hadden, and Warner from continuing to support the
Union, promised that Respondent would increase the
drivers' wages, work them fewer hours, and institute
medical insurance. Although, during the course of the
meeting, Viele Jr. also asked Luna to return to work and
asked Hadden and Warner also to return, this offer of
reinstatement was conditioned on Luna and the other
drivers accepting Respondent's unlawful proposal of in-
creased benefits and agreeing to stop seeking union
representation. Obviously such a condition invalidates the
offer. See Ridgely Manufacturing Company v. N. L. R. B., 510
F.2d 185, 188 (C.A.D.C., 1975). Cf. Royal Crown Bottling
Company, Inc., 188 NLRB 352, 353 (1971); Kamminga &
Roodvoets Inc., 198 NLRB 208, 209-210 (1972); Swain
Manufacturing Company, 201 NLRB 681, 682-683 (1973).
CONCLUSIONS OF LAW
1. The Respondent, Viele & Sons, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Local Freight Drivers Local No. 208,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All truckdrivers and warehousemen employed by
Respondent at its Santa Fe Springs, California, facility
excluding all other employees, office clerical employees,
professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material herein the Union has been the
exclusive bargaining representative of the employees in the
above-described unit within the meaning of Section 9(a) of
the Act.
5. By refusing, since December 2, 1975, and at all times
thereafter, to recognize and bargain with the Union as the
exclusive representative of its employees in the appropriate
unit set out above, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By refusing to provide the Union with information
necessary and relevant to the Union in its role as the
bargaining unit employees' exclusive bargaining represen-
tative and by unilaterally increasing its truckdrivers' wages
without bargaining with the Union, Respondent has
engaged in, and is engaging in, unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. By interrogating employees about their union sympa-
thies and activities, by threatening to close the business and
discharge its truckdrivers because of their union sympathies
and activities, by suggesting that employees quit their
employment with Respondent if they wanted union repre-
sentation , by promising employees a wage increase with
shorter working hours and a medical insurance plan in
order to discourage them from supporting the Union, and
25 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
1951
by granting employees a wage increase in order to discour-
age them from supporting the Union, Respondent inter-
fered with, restrained, and coerced its employees in the
exercise of their rights guaranteed them by Section 7 of the
Act, in violation of Section 8(a)(1) of the Act.
8. By discharging Leroy Hadden and Frank Luna on
December 2, 1975, and thereafter refusing to reinstate
Frank Luna to his former position but demoting him from
truckdriver to warehouseman, because of their union
sympathies and activities Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
9. Respondent did not violate Section 8(a)(3) and (1) of
the Act by discharging employee Douglas Walls as alleged
in the complaint.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 25
The Respondent, Viele & Sons, Inc., Santa Fe Springs,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees about their membership in
or activities on behalf of Local Freight Drivers Union Local
No. 208, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other
labor organization.
(b) Threatening its employees with closing the business or
with discharge or other economic reprisals for signing
union authorization cards or engaging in other union
activities or for desiring union representation.
(c) Inviting or suggesting to its employees that they seek
employment elsewhere if they desire union representation.
(d) Promising and granting to its employees better terms
and conditions of employment to discourage them from
supporting the above-named Union or any other labor
organization.
(e) Discouraging membership in the above-named
Union, or any other labor organization, by discharging or
demoting, or in any other manner discriminating against,
employees in regard to their hire or tenure of employment
or any terms or conditions of employment.
(f) Refusing to recognize and bargain in good faith with
the aforementioned Union as the exclusive bargaining
representative of its employees in the unit found appropri-
ate. The appropriate unit is:
All truckdrivers and warehousemen employed by Re-
spondent at its Santa Fe Springs, California, facility
excluding all other employees, professional employees,
office clerical employees, guards, and supervisors as
defined in the Act.
of the Rules and Regulations , be adopted by the Board and become its
fmdmgs, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
1952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Refusing to bargain in good faith with the above-
named Union by refusing to provide the Union with
information necessary and relevant to effective collective
bargaining and by unilaterally changing employees' wages
or other terms or conditions of employment without
bargaining in good faith with the Union to an agreement or
an impasse.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make Leroy Hadden and Frank Luna whole for any
loss of earnings they may have suffered by reason of their
discharge, in the manner set forth in the section herein
entitled "The Remedy."
(b) Offer Frank Luna immediate and full reinstatement
to his former position as truckdriver or, if this position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Upon request, recognize and bargain with the above-
named Union as the exclusive representative of all employ-
ees in the aforesaid appropriate unit and, if an understand-
ing is reached, embody such understanding in a written,
signed agreement.
(e) Upon request, furnish the Union with the information
requested in the Union's letter dated April 27, 1976.
(f) Post at its place of business in Santa Fe Springs,
California, copies of the attached notice marked "Appen-
dix." 26 Copies of this notice, on forms provided by the
Regional Director for Region 21, after being duly signed by
Respondent's representative, shall be posted by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(g) Notify the Regional Director for Region 21, in
writing , within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT is FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
28 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice readmg "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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that Viele & Sons, Inc., has violated the National
Labor Relations Act and ordered us to post this notice. We
therefore notify you that:
WE WILL NOT coercively interrogate our employees
about employee union sympathies or activities.
WE WILL NOT threaten our employees that we will
close the business or discharge them or with other
economic reprisals if they choose union representation.
WE WILL NOT advise our employees to seek employ-
ment elsewhere if they choose union representation.
WE WILL NOT promise our employees improved
benefits of employment or grant them a wage increase
or otherwise confer benefits on them in order to
discourage their union activities.
WE WILL NOT discourage membership in Local
Freight Drivers Union Local No. 208, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organiza-
tion, by discharging or demoting, or in any other
manner discriminating against, employees in regard to
their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT refuse to recognize and bargain
collectively with the above-named Union as the exclu-
sive bargaining representative of the employees in the
unit described below.
WE WILL NOT unilaterally change wages or other
terms and conditions of employment of the employees
in the bargaining unit described below without having
bargained to a good-faith impasse with the above-
named Union.
WE WILL NOT refuse to furnish relevant information
needed by the above-named Union to represent the
employees in the bargaining unit described below.
WE Wu.L NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
WE WILL make whole Leroy Hadden and Frank
Luna for any loss of earnings they may have suffered by
reason of our discrimination, with interest at the rate of
6 percent per annum.
WE w LL offer Frank Luna immediate and full
reinstatement to his former position of truckdriver.
WE Wu.L, upon request, recognize and bargain
collectively with the above-named Union, as the exclu-
sive bargaining representative in the unit described
below and, if an understanding is reached, embody such
understanding in a signed agreement . The bargaining
unit is:
All truckdrivers and warehousemen employed by
us at our facility in Santa Fe Springs, California,
excluding all other employees, office clerical
VIELE & SONS, INC. 1953
employees, professional employees, guards and WE WILL, upon request, furnish the above-named
supervisors as defined in the Act. Union with the information it requested in its letter to
us dated April 27, 1976.
VIELE & SONS, INC.