Wickes Lumber

National Labor Relations Board - Board Decisions

Aug 8, 1978

237 N.L.R.B. 322 (N.L.R.B. 1978)

[)EC(ISIONS OF NA lIONAl, I ABOR RELATIONS BOARI)
Wickes Liumber, a I)ivision of The Wickes Corpora-
tion, d/b/a [Home Lumber & Supply Company and
Teamsters, Chauffeurs, Warehousemen and
Helpers Local Union No. 533, affiliated with Inter-
national Brotherhood of TIeamsters, Chauffeurs,
Warehousemen and HIelpers of America. Cases 32
CA 120 (formerlv 20 CA 12134) and 32 RK( 17
(formerly 20 RC(' 13882)
August 8, 1978
DE('ISION. ORDER, AND I)IREC('IION
B3 MtiMBI:RS JI NKINS, MIV RPll AN\) RI )AI )i I
On March 22. 1978, Administrative I las JudgIe
Jerrold II. Shapiro issued the attached l)ecision in
this proceeding. IThereafter. Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National I.abor Relations Act, as amended, the Na-
tional Ilabor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' rec-
ommendations. and conclusions ' of the Administra-
tive l aw Judge to adopt his recommended O()rder.
()R )E R
Pursuant to Section 10(c) of the National I abor
Relations Act. as amended, the National .abhor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Iaaw Judge and hereby
orders that Respondent, Wickes Lumber, a Division
of the Wickes Corporation, db/ ha Home lIumber &
Supply Company, Reno, Nevada. its officers, agents.
successors, and assigns. shall take the action set forth
in the said recommended Order.
DIREC TION
It is hereby directed that the Regional l)irector for
Region 32 shall, wvithin 10 days from the date of this
Decision, open and count the ballot cast by Richard
Manz in the election conducted in Case 32 RC 17
on February 8, 1977, and prepare and cause to be
served on the parties a revised tall, of ballots. If the
revised tally reveals that P'etitioner has receiveed a
majority of the valid ballots cast, the Regional I)irec-
tor shall issue a Certification of Representative.
Hlowcver. if the revised tally shows that Petitioner
has not received a miajority of the valid ballots cast,
the Regional Director shall set the election aside, dis-
miss the petition, and vacate the proceedings.
I 11, R.o ilei.nt hais exc 1tel d t,, crtlin Lrcdihdhilt findigs m.ade hb the
- llhLnl" tlll c I .,. .lutidtgc It , h t ii hard's elahhshed poilcs not tio . er-
llt1 AS '11xk 1tllalr t tl, i C I i, Jtlt i c i
'
C , t C llllt l% 1 ith respect to credbihdit?
ll -1 th, 1c.ea. Iprcporldicr a c . of I ll , tlhe rcei.ant e',ience con\llnc.es us
ihiit r e ro cILlttl Trl, :ic 1 1I1TC HL . 5TtC S tandard lrL 1 iali P-r dm s. Io a . 91
\I RB '44 195( i, Iid i188 I 2d 62 t( A 3 195i1 ) We have tcarefulls
c Ili[td [h. ec,, idi ,d find ni bash, for reteroing hi, findings
R, t1l-delle llei .ih,i ext hc c.pl .Icd iwt, lllI. t1l the Adminlstraul: e l.;la
Phlio to rC.hi i. 1I I lE/ g.C tI h, b allo ts a,t hs tiaip. Knudsn , aInd
I ;tr ;,dM Re i'ondenlt .Licrts t ht cse chailleniges ere not prroperls be-
1Ii. tihc \kdminlmritllXe la Jndve ili thiat hls reolutin oIf the challenges
vl. il IhI tIIc of Cl iic lOtc L and Li Kitce tq i lrCilenti In this connecltin
Rc. ,piindcnlt i.lllltlll that the h sl fl ls I Ic e ,ha llne these ballt , that
}l iish p I n. Klqil II,t I -I , .l toI d I i J crC nclot ctiplo\uees in the election
dlme had been ltstiallned h. the Reglilnall I)lrector prior to the consoll-
idated heLiTtig
lnaiSuch aI the ,\dmliilitri.tIIe I kin JudLe suslained Respondenl's chal-
Inc, iito tihe. h.llots .. l i, Ila.slip. ias.oo;,d ;inld Knudson and hence in
thlc ;inatie if a.nN shoiulgi of pieludtce to Respondent in colnnectlrin lith
[ti lS. ile. ict find it lnlitle esiarx t') palss ,n the exceptilon
- c mre ir t itii it the ,dnnllsmtl.l ,t I.aw Judge's conclusion that the Inftr-
.:rlltlmi nii illTTi B 1i t 111l iiffliia t oif iiteL xedri dispatcher Klim Peterlin
'- I . twl aifCt O ti.t h Ce lt i i tile ic te We therefore find it unlletessari to
I''- potr the .madnnlsh l lHt iof the affidait
I)ECISION
STAII MI NT OF TIHE CnSE
JI RRI I) H SIAPIRO. Administrative Law Judge: This
consolidated proceeding is based upon unfair labor prac-
tice charges and a representation petition filed by the
above-named labor organization. The initial charge upon
which the unfair labor practice proceeding is based was
filed November 11. 1976. and was amended November 22,
1976, cehruarv 18. 1977. March 10. 1977. and MaN 17,
1977. The (;eneral C(ounsel of the National Labor Rela-
tions Board. herein called the Board, by the Regional Di-
rector of the Board, Region 32. issued an amended com-
plaint in the unfair labor practice proceeding on October
31, 1977, alleging that the above-named employer, herein
called the Respondent. has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
National l abor Relations Act. herein called the Act. Re-
spondent filed a timely answer denying the commission of
the alleged unfair labor practices.
In the representation proceeding the Union filed a repre-
sentation petition November 11, 1976, seeking an election
among a unit of the Respondent's long-haul drivers. Pur-
suant to a Decision and Direction of Election issued Janu-
ary 11. 1977, by the Board's Regional Director, a secret-
ballot election wxas conducted on February 8, 1977. The
tally of ballots shows that of the approximately 10 eligible
voters. 3 cast ballots for and 3 cast ballots against the
Union. There were four challenged ballots sufficient to af-
fect the results of the election. The Respondent and the
Union filed timely objections to the election. Thereafter,
on June 7, 1977, and November 9, 1977, respectively, the
Regional Director issued a "Supplemental Decision" and
an "Amended Supplemental Decision and Order Consoli-
dating Cases and Notice of Hearing on Objections and
Challenges" which in substance dismissed the Respon-
237 NLRB No. 54
322
HOME LUMBER & SUPPIY CO.
dent's objections in their entirety. dismissed part of the
Union's objections, ordered a hearing before an Adminis-
trative Law Judge to resolve the four challenged ballots
and the Union's objections which had not been dismissed.
and ordered that the hearing be consolidated with the un-
fair labor practice proceeding involsed herein. Ihereafter.
on November 15 and 16. 1977, and December 6. 1977. a
hearing was held in this consolidated proceeding.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and haing considered the post-
hearing briefs, I make the following:
FINDINGS OF F ,\( I
I IrHF BtISIMNSS o(r RiSP(NDI NT
The Respondent, Wickes L umber, a Division of the
Wickes Corporation. d 'bha }tome lumber & Suppl ('om-
pany. is a Delaware corporation with an office and place of
business in Reno. Nevada, where it is engaged in the retail
and nonretail sale of lumber products. During its past cal-
endar year Respondent received over $500.000 in gross rev-
enues and sold and delivered goods Ialued in excess of
$50,000 directly to customers located outside the State of
Nevada.
Respondent admits, and I find. that it is an emplover
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11 THE LABOR ORCGANIZ\IlON INkOI iFD
Teamsters, Chauffeurs, Warehousemen and Helpers Lo-
cal Union No. 533, affiliated with International Brother-
hood of Teamsters. Chauffeurs, Warehousemen and
Helpers of America, herein called the * nion, is admittedly
a labor organization within the meaning of Section 2t5) of
the Act.
III THF Al I EGFD t NIF-R lA BOR PRA( I( IS
A. The Issues
The essential questions presented in the unfair labor
practice case are whether Respondent laid off nine long-
haul drivers because of their union activities. ' threatened
employees with a loss of their employment if the) support-
ed the Union, told an employee that the long-haul driers
had been laid off because of their union activities, interro-
gated employees about their union sympathies, discharged
long-haul driver Richard Manz because of his union activi-
ties and/or because he gave testimony for the Union in the
repesentation case, discriminated against long-haul drivers
Lewis Cunningham and Paul Ramos in their work assign-
ments because they supported the Ulnion, 2 and, if Respon-
The ct)mplainl alleges Ihal Responidelr alisoi idltled the .Mi h? rclflu4 lig
to reinstate one nf the nine laiid-ff eniplosees . ack llalshp, behc.ite of hi,
unifon atrtllhes Al the starl of the lle.lrine I orannled the (ilcne.l ( ,otlletII
unopposed motlionl I(l dlslliss this allegation bah ed tl}'..ll 11tC (ienieral (Cotlll-
sel's representaliton that his Itlal plep.ar.ation had rckealcd thati Resp ldt. i
in facl had offered HiItslip reintinte init oi oir a.hb u I)c. elbct be I 1- 7
dent engaged in some or all of these alleged unfair labor
practices. is Respondent obligated to remedy its miscon-
duct by recognizing and bargaining with the Union as its
long-haul drivers' exclusive bargaining representative.
B. The Serring
Respondent sells lumber and related products at its
place of business located in Reno. Nevada. The group of
employees employed in the Reno facility who are involved
in this proceeding are the long-haul drivers.
The parties stipulated that on November 3, 1976.' Re-
spondent emplox ed 13 long-haul drivers. It is also undis-
puted that on November 2 nine of them signed cards stat-
ing the card signers authorized the Union to represent
them in collective-bargaining negotiations. The same eve-
ning long-haul driver Young. who earlier that day was so-
licited to sign a union card but had refused, phoned Re-
spondent's sales manager. Thomas Davis. at his home and.
in substance, informed Davis that another long-haul driver
had solicited him to sign a card for the Union which
Youing had refused to do and that union cards were being
circulated around the Compans's yard for the other long-
haul drivers' signatures.4 The next day. November 3. Re-
spondent laid off 9 of its 13 long-haul drivers, the ones who
had signed union cards. The names of these employees are
as follows: L ewis Cunningham. Richard Eastwood., Jack
Hayslip. led Knudson. John Oberholzer. Richard Manz,
Paul Ramos. Robert Rogers, and Howard Zumbaugh.
On November I I the Union in Case 20- RC 13882 filed
a petition swith the Board's Regional Director seeking a
representation election among the Respondent's long-haul
drivers. On December 13 the Regional Director conducted
a hearing in this matter. One of the witnesses who testified
for the IUnion was long-haul driver Richard Manz. He was
discharged 2 days later. A secret-ballot election in a unit of
long-haul drivers was held under the Regional Director's
supervision February 8. 1977. which resulted in a tie vote
with four challenged ballots being determinative.
(. T/hc Indcpentlnr I iolattriot of Sectionl 8(a)(1)
i. Conduct attributed to Thomas Davis
Cunningham, a long-haul driver. testified that approxi-
mately 4 davs before the February 8. 1977, representation
election he accompanied Sales Manager Davis 6 on busi-
I he com plaintI .II I C al ico, imilar kIIalufl dsrlillnallon again st Mar-
Jili Brt, it
.
ItI i lletge, l¢i .,l di,Lritlllllirl .igalIlnSt I ei.ls ( nlnntingh.all and
tl';li Rairlo n ct onnechttie n t lI h Iheir pa.rking prlxlt ees In his potl-hearirng
brief the (eltere. l ( ouninel itkn'leda, )h;al Ithe record dores nolt supptort
Ihesc alleg;lion-s arid reqLrelsi thait Ihe! be dismissed I shall recommend
ihat Ihesc p.irtrtio.s if the comiipll.it be d:it.,ssed.
nt:nie.. othertl e rtated lIl idates herein refer air 1970
4Bsed pI"' l t i ornipsec if tIle te,rlnlolil
x
n f D[)als nd "'oung I find it
lintIleciesar Ii the rlehluilhn f .illn, f Ihe t~sue. herein to decide ' hether
as liong-haul drtver ( tinningh mrn testifed. ' Oung Inforlned l)a'is about the
[I Ion'i o ir twnd ilah l]n calllllpi gill ie he afiernoo rilil on Nossember 2 rtlh-
er lh.lri the C\clrllig
I reco.ltlzc thefre is i. dlisptie ibhtllt hether [i alv, d ta l s Iild t ff If aI ir
i the pin for The rel,,lls s.et forth helovi Ihait alsoos d ais Iaid off
t[).tAIs 1i h I t1l.le1 .If IiIC ( OlrlpIll IsI" III IItt Irtl ckilie oPeiilpet rl and Is
ilIIltt ll e i tI .t Wlls t. t stIJlp.n[l r lid ill .Igenrt of Respitldclit
323
I)F.( ISIONS OF NATIONAL LABOR RELATIONS BOARD
ness to one of the Company's lots where the drivers park
their trucks, at which time Davis told Cunningham he had
heard rumors that if the Union were voted in, Wickes. Re-
spondent's parent corporation. would probably sell the
trucks or transfer the trucks to California.
Ramos, a long-haul driver, testified that on January 15.
1977, Davis stopped him as he was leaving the company
office and asked why Ramos and the other drivers had
signed union cards. Ramos explained to Davis why the
drivers, including Ramos. had signed union cards. Davis
replied, according to Ramos, that if the U[nion succeeded
in getting into Respondent that Respondent could sell its
trucks.
Davis did not specifically testifv about the aforesaid
conversations. Rather he generally denied interrogating
long-haul drivers about their union sympathies or that he
warned them that Respondent would go out of business or
sell its trucks if the Union succeeded in its organizational
campaign.
In presenting the above-described testimony
C('unningham's and Ramos' demeanor impressed me favor-
ahly. On the other hand, when Davis voiced his general
denials and when he otherwise testified. I was not im-
pressed by his demeanor. Cunningham and Ramos gave
their evidence with an air of candor and sincerity. swhereas
l)avis not only failed to address himself to the specific con-
versations, but in making his general denials was not a
convincing witness. In crediting Cunningham and Ramos
over Davis. I have also considered the following factors:
Cunninghamr at the time he testified was working under
Davis' supervision and gave his testimony in l)avis' pres-
ence: ('unningham's and Ramos' testimonv is mutualls
corroborative insofar as they each testified that l)avis indi-
cated that a union election victory could result in the sale
of the long-haul trucks; there was nothing in Ranmos' and
Cunningham's description of Davis' remarks to suggest
that their testimony was fabricated. Also, in crediting
Cunningham's and Ramos' testimony. I have considered
that each has a financial interest in the outcome of this
proceeding and that later on in this D)ecision, in the case of
Cunningham. I have discredited other portions of his testi-
mony. Nonetheless, recognizing that I ani not an infallible
observer and that perhaps the significance of demeanor.
like beaiuts. is in the eve of the beholder. I credit (Cunning-
ham and Ramos for the reasons set forth above. particu-
larlv because they impressed me as candid and sincere skit-
nesses when they gave their aforesaid testimony shereas.
in voicing his general denials, Dav is did not inmpress me in
manner and demeanor as being a credible witness.
Based upon the foregoing I find that on approximatelN
Iehbruar 4. 1977, Sales Manager Davis warned long-haul
driver (Cunningham that if the long-haul drivers voted for
the 1:nion. Respondent would probahbl sell its trucks or
transfer its trucks to California. I ikewsise. I further find
that on January 15. 1977. Davis warned long-haul driver
Ramos that if the Union succeeded in organizing the long-
haul drivers that Respondent could sell its trucks. These
statements constitute a veiled threat that Respondent
would discontinue its long-haul trucking operation, thus
causing the long-haul drivers' termination. if the'N voted iil
the scheduled representation election for the I nioln. It is a
threat to take action solely within the power of Respondent
and obviously was not based upon any economic pre-
diction, and was calculated to interfere with, restrain, and
coerce the long-haul drivers from exercising their statutory
right to support the Union. By engaging in this conduct, I
find, Respondent violated Section 8(a)(1) of the Act.
I also find that on January 15, 1977, Davis asked long-
haul driver Ramos why Ramos and the other long-haul
drivers had signed union cards. This interrogation placed
Ramos in the position of having to involuntarily reveal his
feelings and attitude toward union representation. It took
place in the context of Davis' contemporaneous illegal
threat that Ramos and the other long-haul drivers would
be terminated if they supported the Union. In addition, the
inteirogation had no legitimate purpose, nor was Ramos
gien any assurances against reprisals but instead was
threatened with termination if he continued to support the
Union. In the light of all of these circumstances, I find
Respondent violated Section 8(a)(1) of the Act by Davis'
interrogation of employee Ramos about his union sympa-
thies. See CBS Records Division of CBS, Inc., 223 NLRB
709 (1976).
2. Conduct attributed to Raymond Rassbach
C(unningham, one of the long-haul drivers who was laid
off herein, returned to work on or about November 16.
( unningham testified that on Friday, November 19. after
work. while making a purchase in the store located directly
across from Respondent's premises he had a brief conver-
sation with Cabinet Shop Manager Rassbach 7 in the pres-
ence of the store owner. Rassbach, according to Cunning-
ham, made the follow ing statement: "I finally got the
scoop on why you guys got laid off . . . lilt's because you
signed them union cards." When Cunningham stated he
had been recalled to work, Rassbach replied, "They must
has e found out 'ou lwas not involved in it."
On direct examination. Rassbach denied having a con-
versation with Cunningham on November 19 or that he
had made a statement to Cunningham on that date about
the la' off of the long-haul drivers. On cross-examination,
he admitted he had a conversation with Cunningham in the
store, but that it took place about 2 weeks before Novem-
ber 19. And. when asked what he said to Cunningham, he
testified: "I believe. at that time, I might have asked . . .
Cunningham what the situation was with the truck driv-
ers" "1 think I asked [Cunningham] what's going on with
the truck drivers because there was talk running around the
';ard and I w.as kind of curious. [Cunningham] replied and
told me that he just got in and he did not know anything
about it ... I asked [Cunningham] if he heard what was
going on sith the truck drivers. There was a possibility
that there was talk going around the place. I was curi-
ous. 1I asked [Cunningham] what in the world's happen-
ing or lhat's going on . . I didn't say that I knew any-
tlhing about a layoff or an thing because I didn't, but I
knew something was happening." The reason Rassbach
Rik.lclhll L -l th rwC ili.ll l i f R ipondentCs cabinet shrp and is admitted-
[ .t i pctl l ,i -l.l , ,nld .i liive11 or Respondent. lte h1t, e'en enplot -
cL iliit[! }It utpci lTI tlotlt t h {le ark long-haul divers
324
HOME LUMBER & SUPPLY CO.
testified he had concluded "something was happening"
was "there was talk in the yard that the trucks were
stopped. I mean I know that they' were not working be-
cause the trucks were not rolling. They sit right out beyond
my window there." And, when asked whether he discussed
with Cunningham the fact that the trucks were not moving
and what was happening to the long-haul drivers. Rass-
bach testified: "It's possible that could have come out. It's
been so long ago. I didn't even remember the incident till
somebody brought it up."
Based upon the foregoing I find that on November 19
Respondent, through Cabinet Shop Manager Rassbach. in-
formed long-haul driver Cunningham that Cunningham
and the other long-haul drivers had been laid off because
they signed union cards. 8 This statement was calculated to
restrain and coerce Cunningham from supporting the
Union. By engaging in this conduct. Respondent violated
Section 8(a)(l) of the Act.
3. Conduct attributed to Dik Buxton
On February 8, 1977. long haul driver Cunningham act-
ed as the union's observer at the representation election
held that day. The credible and undenied testimon' of
Cunningham is that on February 8, after the election. Chief
Mechanic Buxton 9 spoke to Cunningham in the presence
of two other employees and asked whether Cunningham
had changed his vote. Cunningham answered in the nega-
tive.
The law is settled that postelection inquiries into the
manner in which an employee has voted in a Board-con-
ducted representation election is an illegal intrusion upon
the privacy of the voting process. N..I..RB. v. I.ouianla
Manufacturing Companv. 374 F.2d 696. 701 (C.A. 8. 1967).
This is especially true in the instant situation where
Buxton's interrogation of Cunningham occurred in the
context of Respondent's unfair labor practices. Accord-
ingly, I find that Respondent on Februar, 8. 1977. violated
Section 8(a)(1) of the Act by interrogating (Cunningham
about how he voted in the Board-conducted representation
election.
In concluding that Buxton illegally interrogated Cun-
ningham I have considered that the amended complaint
did not date this violation as having taken place on Febru-
ary 8, 1977, rather it alleged it took place "on or about
I reach hi, concluslion on ite basis of ll\ ohserxsi.ion f the dei c,ii loti
of Cunningham and Rassbh;h shile itetifini ( unrllngh.nil . xho. as ell)
plosed hs Respondent when he testified. ga< hia , letinion' \ in i sir.ihliff-
ward manner with an air of candor iand SInLerlli. In his b;asitlng anid dc
meaner Rassbach did noit nipre,,s nic a a sincere it.lie.s tSircxC[ his
testilnon Awas not gi;en in a collincling minlner. ralther. he saicluIi. anid
evasivels testified. " helieve I mnght ha'e asked [( unlninlghlmlll , "
think I asked lCunnimirhaml.' Also Rissbhah'is lestlinin rlins [.ile irl thai
I am skeptlcal Ihat Raisshbach. a member of superiolin. aiier hcersi'in that
the ('ompan.'s long haul trucks were .out o)f i.1,ni/ilsslnl. , ,ulrd not ]li.'e
salisfied hi, curiosii, about the fiiater hb quesiinini olne ic h i fillk.
superslsors ,ho had personal knlt, sIedigc of this uhbleit,. rather th. ilt lltn
until the end of the workdas and Ihen quectlonlng ( uinnilgh.lil In .hTlL.l_
so general "what In the Aorld's happening or wh.iat's ,izI .on" i 1:t t
preclude Ihe possibilhit of air inl elli*cnil c.0n reat.ii.n
Buxton is adtmttedls .1 stitLlor- superxssor .ind ai icin i f Rg.c t ,,
dent iHe exercises jOlit isLlIpersIl- .l 'i.t 1Cr the I0.ll i hll rl ls 0 .tili SStAC
Manaiger DI)ali
December 6. 1976." In my, opinion the variation between
the date on which the unfair labor practice actually oc-
curred and the approximate date on which it was alleged to
have occurred is not substantial enough so as to have mis-
lead Respondent. so that Respondent did not present eit-
dence to controsert Cunningham's testimony which, I
note, was not objected to by Respondent. In m, view the
finding that Buxton illegalls interrogated Cunningham on
February 8, 1977, was "fairl, comprehended in the lan-
guage of the complaint.." '.I..R.B. v. Scenic Sportsiear.
475 F.2d 1227 (C.A. 6. 1973).
4. Conduct attributed to }Hector Feliciano
Cunningham testified that in December while working
in the compan,'s sard he overheard Work in I Forem.an
Felliciano, mi who was standing 4 feet awai from wkher e
Cunningham was working, talking to two yard emplosees.
Cunningham testified Feliciano told them that "if the_ got
any wild ideas [about voting for the I'llioln] the same thiny
would happen to them that happened to [the line driisersl."
Cunningham did not place this remark in its context, nor
did he describe the remainder of the conersitonm. I-elicl-
ano specifically denied making these remarks.
I shall recommend that the portion of the complaint
which is based upon Cunningham's aforesaid testimony be
dismissed. I hase reached this conclusion on the basis of
the demeanor of both witnesses while testifying. Feliciano
impressed me as the more trustworthy witness.' Moreover.
David Boneck, one of the employees to whom Feliciano
was allegedly directing the remarks overheard by Cunning-
ham, was not called as a corroborating witiness even
though he testified for the General Counsel in support of
another allegation.
5. Conduct attributed to Robert Quigles
On l ebruarv 7, 1977. after working hours. representa-
tives of Respondent met with its yard employees for the
purpose of dissuading them from supporting the I eamsters
union. During the meeting Respondent's representatives
made it quite plain to the employees that Respondent was
opposed to union representation and would oppose it using
eser, lawful aind proper means at its disposal. The com-
plaiint alleges that during this meeting Robert Quigley, the
director of industrial relations for Respondent's parent cor-
poration, who is admittedly an agent of Respondent.
threatened emploees with discharge if they supported the
Union.
David Boneck. a yard employee. testified that the spokes-
persons for Respondent at this meeting were [)irector of
Industrial Relations Quigles and Robert Kierdorf. the mnil-
ager of industrial relations for Respondent's parent corpor.i-
tion, who is admittedly an agent of Respondent 3Boneck
I it c ntill' t f.or.orkiii troltlli , he siupcrises Respondetl ts al drt-ir
crF 1 1a d lift dip Crs : 111d ,s .adiittedll .1 mltll r super\ l, r .mid ain iieCilt iof
Re pondcntrr.
i arhter I tredelt'd ( iillllgilltH l' u C lstill l I/ corille i w f sill t Co.lliCr
i ,l11 .i hie ,lsil Sailes i.n ger I),. u. nd ('binetl Shop Manteier Ras'-
irlh II--u-ccr Tegardl.e the iltrill ..rils ristilon I tnl of the eliloil.rl tillt
1 i tcllolr V.,I, e i lt.r. l' hilc gic ltflrcs
I)E (ISIONS OF NATIONAL LABOR RELATIONS BOAR[)
further testified that Quiglev and Kierdorf each told the
employees that if they supported the Union thec eventually
would be "phased out" and if they engaged in a strike they
would be replaced and "eventualls the', would be phased
out.
Kierdorf specifically denied that the aforesaid comments
were voiced by himself or Quiglex or by ans company rep-
resentative who attended this meeting. Moreover, he tcsti-
fied that Quigley was not present. but was several hundred
miles away in Modesto, California. 2 and another company
representative read a prepared speech to the employees
verbatim. Ihe text of the speech, which is in evidence. does
not contain the remarks which Boneck attributed to Quig-
ley and Kierdorf. Boneck was unable to give a phssical
description of Quigley. lie testified that the onls time hc
had ever observed Quiglev was at this meeting.
I shall recommend that this portion of the complaint
which is based upon Boneck's testimony be dismissed. I
have reached this conclusion on the basis of my observa-
tions of the demeanor of both witnesses while testifying.
Kierdorf impressed me as the more trustworthy witness.
1). Ihe I ioll Sion of ecion 8(a)(3) anl (I) of the A c4
I. The alleged discriminatory layoffs
On November 2, nine of Respondent's long-haul drivers
signed cards designating the Union as their collective-bar-
gaining representative. The same evening Respondent.
which was opposed to union representation for its employ-
ees,13 learned the Union had commenced an organizational
campaign among its long-haul drivers and was soliciting
them to sign union cards. I ess than 24 hours later on No-
vember 3. Respondent laid off the nine drivers who had
signed union cards. 14 The four who did not sign cards were
not laid off. The layoffs. which took place in the middle of
Respondent's workweek. were effected abruptly with no
advance warning. Thereafter, on November 19. (Cabinet
Shop Manager Rassbach, in violation of Section 8(a)( I ) of
the Act, told long-haul driver Cunningham that the reason
for the layoffs was that the long-haul drivers had signed
union cards. Also, Sales Manager Davis, following long-
haul drivers Cunningham's and Ramos' return from layoff.
violated Section 8(a)( 1) of the Act. by warning them that if
the long-haul drivers voted for the Union in the scheduled
representation election that the long-haul drivers would be
terminated.
1 t his lestiltioi s as coirroborated hs ; h l l i , l.I h hic i ll. I e I Cs that alt
I ehIuairsy 7. 19t77, Qulglec was registered in I Modeto. ('aliforitia. hotcl
Ithe prepared speech uhich a rcpras uhired ;i, chief iechanic ;approxinltels? the first week of Sepern-
her 197l
326
HOME LlUMBER & SUPPI Y ( O.
town on that date. Also Davis testified. "Logan told me to
set the equipment down that was not feasible to run."
which is contrary to Logan's testimony that Buxton was
given this authority and that Davis was so informed.
Regarding the reason for Respondent's decision to la)off
the employees. Logan testified that at the time of the lavoff
there was work for the employecs who were laid off to
perform and business conditions had absolutel' nothing to
do with their layoff, but they were laid off "to satisfy Bux-
ton," so Buxton could repair the trucks. Likewise Davis
testified that at the time of the layoffs there was work for
all of the long-haul drivers and there would not have been
any layoffs but for the fact that the Company was having
problems with its equipment. I recognize that Respondent's
counsel in questioning Logan asked: "Aside from the rail
factor that you have alluded to [referring to the fact that it
was less expensive for Respondent to use rail transporta-
tion than its trucks], were there an) other factors that en-
tered into your mind when you made the decision to shut
down the trucks." And. Logan answered: "We have a bud-
get that we operate each department under and for some
months our budget had exceeded almost double what had
been appropriated for operation of trucks during the past
several months. Also at the same time, our city had an-
nounced a sewer moratorium about the same time." Inso-
far as counsel's question indicated that L ogan had testified
that the decision "to shut down the trucks" and la' off the
employees was influenced by the fact that it costs less to
use rail transportation than truck transportation. the ques-
tion assumes facts not in evidence. Logan at no time testi-
fied that this was an economic consideration which influ-
enced him to direct Buxton to "shut down the trucks" that
needed repairs. Likewise, Logan's answer to the question is
completely at odds with his testimony and Davis' testi-
mony, described supra, which omit any indication that the
decision to "shut down the trucks" and layoff the drivers
was influenced by budgetary considerations or because
business was slack due to the cit)'s moratorium on sewer
construction.
Regarding the manner in which the employees were se-
lected for layoff. Logan testified that the reason particular
employees were picked was that the trucks they were as-
signed to were the ones removed from operation. Likewise.
Davis testified that the only reason the nine drivers herein
were selected for layoff was that the trucks that were as-
signed to them were the ones which needed repair work,
whereas the four employees not selected for layoff "had the
4 runable trucks." This resulted in the four most senior
drivers being retained. It was not a conscious result based
upon selection by seniority', rather Davis testified. "as it
turned out the four senior drivers had the 4 runable
trucks." According to Davis. the employees were selected
for layoff pursuant to Respondent's usual policy whereby
each driver is permanently assigned a particular truck and
trailer and, regardless of seniority, is not afforded bumping
rights when his truck becomes inoperable. Rather, a driver
whose truck is out of order normally does not work until
the truck is repaired, unless Respondent has extra equip-
ment available.
To recapitulate, in defense of the layoffs Respondent's
representatives Logan and Davis testified that the la'offs
were occasioned by the fact that the trucks assigned to the
drivers who were laid off had been removed from service to
be repaired and that the decision to remove them from
operation was made prior to the Respondent's knowledge
of the union activities. I reject this defense for the follow-
ing reasons:
(1) Logan and Davis were not convincing witnesses.
'lheir demeanor was unimpressive. Because of this I am
extremely reluctant to give their testimony any credence,
particularly inasmuch as both of them were only secondary
actors in the action which resulted in the layoffs. The prin-
cipal actor was Chief Mechanic Buxton. It was Buxton
who, as described supra, supposedly caused Logan on Oc-
tober 29 to order the removal of the trucks from operation
which resulted in the lawoffs. Also, it was Buxton who in
effect supposedly selected the drivers for layoff, which se-
lection resulted in all of the union card signers being laid
off but none of the nonsigners. Nevertheless. Buxton, the
chief protagonist behind the layoff, and the person best
qualified to testify in support of Respondent's defense. was
inexplicabl? not called to testify' though available to so do.
I therefore draw the adverse inference that, had Buxton
been called, his testimony would not have corroborated
Davis' and Logan's and would not have supported Respon-
dent's defense.
(2) Respondent's defense that the layoffs were ordered
b) Logan on Friday. October 29, is highly suspect. Signifi-
cantly, as described supra. L.ogan and Davis gave wholly
inconsistent accounts of their purported conversation deal-
ing with the layoffs. Moreover, Logan's account of his pur-
ported conversation with Buxton which supposedly trig-
gered the layoffs was not corroborated by Buxton. I am
persuaded that if, as Logan and Davis testified, they in fact
conferred about the layoffs prior to Respondent's knowl-
edge of the union activities. their testimony concerning this
conversation would not have been contradictory. Likewise,
I am persuaded that if, as Logan testified, he instructed
Buxton on October 29 to "shut down" the trucks for re-
pairs. Buxton would have been called to corroborate this
significant fact. Further support for the conclusion that the
decision to lay off the drivers was not made on October 29,
prior to the union activities. is drawn from the fact that
work was assigned to drivers who were laid off on Mon-
day., November 1. and Tuesday, November 2. Respondent
failed to explain why, if on Friday, October 29, a decision
had been reached to shut down its trucks for repairs and
lay off the drivers that the decision was not implemented
until November 3, hard on the heels of its knowledge of the
union organizational campaign.
(3) I'he record does not support Respondent's conten-
tion that the removal from operation of the trucks for re-
pairs caused the layoffs herein. First. aside from Logan's
and Davis' bare assertions that the trucks assigned to the
employees who were laid off were in fact the subject of
repair work or safety checks, Respondent came forward
with no evidence to support this defense. Admittedly. Lo-
gan and Davis lacked personal knowledge about this sub-
ject. In fact. Davis, in conceding he was without such per-
sonal knouledge. testified that Chief Mechanic Buxton was
the person who had this information and further testified.
"Buxton has reports of what he did to each piece of equip-
327
Dl ('IS IONS OF NA IONAI. .ABOR REIAl I()ONS BOARD
ment." I am convinced that, if the trucks and trailers in-
volved herein were repaired or otherwise inspected during
the period they were removed from operation and this vas
the reason they were removed from operation, either Bux-
ton and/or these records would have been produced by
Respondent. Respondent did not explain Buxton's absence
or its failure to produce the reports referred to by I)avis. In
addition, the inference that the trucks were not '"shut
down" so that Buxton could perform repairs or safety
checks is reinforced by the undisputed fact that during the
period in which they were shut down the trucks were
parked in a storage yard, not oswned by Respondent. locat-
ed several miles from Respondent's premises. Respon-
dent's unexplained failure to park the trucks at its own
premises where they normally are parked and where Bux-
ton is located does not jibe with its purported intent to
have Buxton repair the trucks or conduct safety checks.
Finally. Ramos and Cunningham. two of the laid-off driv-
ers. credibly testified that when thev returned from la yoff
neither one was able to observe that there had been anN
mechanical work done on their respective trucks. Indeed,
Cunningham testified that his truck was a new one which
needed no work.
(4) Respondent's contention that it remosved 9 of its 13
long-haul trucks from operation for repairs or safets
checks does not sound plausible. T'here is no evidence that
as of November 3 Respondent's fleet of trucks ' as in such
a state of disrepair that it was necessary to remove 9 out of
13 trucks from operation at the same time. There is no indi-
cation that Buxton suggested to L.ogan that Respondent
shut down virtually its entire long-haul operation. l.ogan's
testimony indicated that Buxton onlI suggested that L.ogan
allow him to hire an additional mechanic to assist in main-
taining the trucks. Since the record estahlishes that it wras
not possible for Buxton to work on more than one or two
trucks at one time, it is not surprising that Buxton did not
suggest the wholesale shutdowv n of RCsponlenlt's long-ha;ul
trucking operation. The lack of sense for Respondent to
remove 9 of its 13 long-haul trucks from operation for re-
pairs at one time. while Buxton could only sorik on I or 2
trucks at one time, is reinforced b? I Loani's admission that
on November 3 Respondent had ample work to keep its
long-haul drivers busy and that. because of this. Respon-
dent wanted its trucks to he repaired as soon as possible so
that the drivers could return to work.
(5) Respondent's contention that the reason for the la!-
offs herein was to conduct safet, and mechanical checks
on the drivers' trucks not previoulsly evaluated bh Buxton
is belied by the fact that one of the trucks remodved from
service on November 3 and taken to a storage ,arid and
locked up was the one assigned to longi -hlaul driver last-
wood. This truck had been idle since at least October 23
when E.astwood ceased working and went on a medical
leave of absence. I find it difficult to believe that if Buxton.
as Ixogan testified, was so concerned about the state of the
trucks, including the one assigned to [.astswood, that he
would not have conducted a safert check or repaired this
truck during the 10-day period prior to the lax off sIwhile the
truck was not being used
(6) Even if certain trucks and trailers had to be remo,,ed
from operation and their drivers laid off due to repairs or
safety checks. Respondent failed to explain the basis for
the selection of the nine drivers who were chosen for lay-
off. TIhus. as noted vilpra. all nine drivers who signed union
cards on November 2 were laid off the next day. Respon-
dent's \witnesses, Iavis and Logan, testified in effect that
this was a mere coincidence. that these drivers were select-
ed for layoff bh Buxton based upon the fact that their
trucks needed to undergo a safety check or be repaired.
Yet. Respondent failed to produce either Buxton or the
records he kept to substantiate this claim.
Based upon the foregoing, I am persuaded that the eco-
nonmic defense advanced by Respondent to justify the lay-
offs herein does not withstand scrutiny. I further conclude
that when the insubstantial nature of Respondent's defense
is considered in the context of the facts which make up the
(ieneral Counsel's primal fcie case that this bolsters the
conclusion that Respondent intended the wholesale layoff
of the long-haul drivers to be a show of force, a display of
power, to discourage union iactiv'ity among this group of
employees at the outset. I therefore conclude that Respon-
dent violated Section 8(a)(l) and (3) of the Act by laying
off the employees herein and thereby discriminated against
these employees as a group.
2. Ihe alleged discrimination against Cunningham and
Ra mos
ai. 7I1/ Il a't.s
F'our of the long-haul drivers who were illegally laid
off \lani. Oberholzeri Ramos, and Cunningham re-
turned to s ork and. of these, only Ramos and Cunning-
hIllm conltilnued in Respondent's employ for a significant
length of tllre. 1 The General Counsel contends that after
their recall Resprondent discriminated against Ramos and
( unnillgn11m in the assignmient of swork which resulted in a
loss of sasiges. I 1 facts are as follows.
Respondent's lon it-haul drivers are paid by the mile.
I he! are normalll N dispatched to their jobs by seniority
and, over anll extended period of time, those employees with
the most sctiiorit should receive more of the better paying
aisignments alnd hence earn more money than the less se-
nior emplosees. Ca unlinghainl credibly testified, in this re-
gard. that seniorits determinces hich drivers are assigned
swork and further testified that because of this the senior
drivers noritills\ eain more mlonev than the less senior
ones because "the newest gus s usualls get in our lan-
guage wke call theml muck runs Ireferring to short mileage
runsl." Cunlillghalm's testimon, wssas essentially corrobo-
rated bs Manal;lger of Industrial Relations Richard Kier-
dorf. visho testified that seniority pla)s a "major factor" in
the dispiatch of the long-haul drivers. The use of seniority
e 5 111.CC a t' if ,r .i'h i l [1I .Ic' lplposc oI' \I fI dL tis ur.il lll l f u l
:]l~ ll lbi h [,l]/ ;i k¢.,11 .iAr t IIC tl r IC ic l ,lI illd ~ T [I c chS I dl eti cd lit a ttIhe
Atlt 11th A illl k11.Itl im . l; ll ., 11 ' l li tC'f Ul 1h il1\ .f ,ile elltlll led to
Cl lll C it lrli J ltil. ;fli IdleI t , ti l oI r 1o allether Respoildelit 'i,ii
A\-.It if ltlk Li/L iv idlts of Ct h Illcrli hel to the gritp Seec R,I,A, len
( , m/,,:l/l ( ,.,e<,,/e.,,/ I/)~,,i 2 ~1%" \ RBl $1 (19? } klld t i.cs ied LII ir
\ lllind Iti, \tnIllN ,,r, i tlr 'fu [l d5 ' i Il m tli.d v, ithfl 1 [ilnt lh of lhi,
CtktI I.] ()A cli l]/c tI/Iui, r ll t ql t i
.
tttil fler kir l les' J hit 2 `eeks
328
1HOMNE I.UMBER & SULPPL Y (O.
in assigning the available work does not result in a signifl-
cant disparity between the dris ers' earnings when o4lrk is
plentiful, but from November or earl' December to earl:
May the amount of work available drops off consideriabls
and during this period, as Sales Manager Davis testified.
"the senior drivers will get trips, and the junior drivers can-
not live on what they are making and they will go find
employment elsewhere." Davis also testified that during
the time material herein, by the middle of December, there
was only sufficient work for six or seven long-haul drivers.
In short, the record indicates that, generally speaking. there
should, over an extended period of time, be a correlation
between the earnings of the long-haul drivers and their rid-
ative seniorit' and that this is particularl\ true during the
winter months.
During the period starting in Januars 1977. Railos ' ho
began work May 4, 1976. was fourth on the long-haul driv-
ers' seniority roster and C(unningham who began work Sep-
tember 1. 1976, was fifth."e
During the first quarter of 1977 (Januar! through
March), six long-haul drivers worked for Respondent for
more than 4 weeks who had less seniorit, than either Ra-
mos or Cunningham. I heir names and dates of hire follow:
Brown, December 16. 1976:; Mlait,; Janurai\ 28. 1977:
Saunders. January 31, 1977: Ross, Februar\ 28. 1977. Wil-
mer. March 2, 1977; and Maher. March 9. 1977. An exami-
nation of Respondent's payroll records for this quarter re-
veals that all six of the less senior drivers earned more
money than Ramos and Cunningham 19
During the second quarter of 1977 (April through June).
Respondent employed five long-haul drivers with less se-
niority than either Ramos or Cunningham. Iheir names
and dates of hire are as follows: Mavits:. Januar 28X. 1977:
Ross. Februars 28. 1977: Maher. March 9. 1977: Wilner.
March 2, 1977: and lIong. March 24. 1977. An examina-
tion of Respondent's payroll records for this period reeals
that all five less senior drixers earned mo)reC mone thian
Ramos and all but one, Masit,. had greater earnings than
Cunningham.
During the third quarter of 1977 (Jul\ through Septern-
ber) Respondent had in its employ, the sa. ne fie long -haul
drivers with less seniorits than Ranmos an d (.lnllillnngha;l as
were employed during the preceding quarter. An exanmina-
tion of Respondent's pa roll records reseals that in the
third quarter all of the less senior drivers earined more
money than Ramos. but all earned less mones than C'un-
ningham.
()heli2 llcr h.adl !l1nr1oc n110t1t\ tldllr li lll ll l hutll l }U 1 kcd 1]c s [hl-,11
2 eek . filer relurnitle froil hlr Ia ff
t Sinte none f the css c,, enor dirlers :..k.. l. ¢ ti l ltire ijtliltCr I h1mi
cio)mpared Iheir ealrningllp s th ithe crlrlllt .-f Rnlls .ndi (t l lnlll /.t[ll !)
uc nv ine lli thtI partitular fp.!rio]i pcli'd da. llllg xtIhih thle Ric tl. t./1
plo) cs v.crt tclljlt o,.cd In tile -,, ,, L1i11l ,II, s t il' StlTlo t, 2"i n
19e 7, ill fmlpariln hil earlnillg I. ll) R:.Ir ' and ( jlill lllh I ll [ Id
include the p wAs l r[priodl enrifl*l Januilmir\ "t 1 i"- hc xu.n- , 11l\ .113
emplo,,ec for I da~ durulvg tnl~ pelrid
b. t'llialilc finlihns untd discus.sion
(I ) Ramos
Ramos, in Januars 1977 after his return to work form
the layoff, in response to Sales Manager Davis' illegal in-
terrogation indicated that he favored the Union. Thereaf-
ter. he earned less mones from January 1977 through Sep-
tember 1977 than virtuallv everyone of the less senior
long-haul drivers even though over an extended period of
time Respondent's method of dispatching drivers normally
should result in the less senior employees earning less
mone, than a more senior employee. particularly during
the slack w inter months. On the other hand, the record also
indicates that senior drisvers who do not desire to work as
frequentls as less senior drivers will not earn as much as
the less senior drivers. In Ramos' case, an examination of
Respondent's pa Nroll records for the time period prior to
the union acti ities indicates Ramos' earnings, in a number
of cases, were less than the earnings of less senior drivers
for extended periods of time. In addition. Ramos testified
in effect that he was not discriminated against in work
assignments after being recalled from laNoff and that his
earnings did not suffer. Under these circumstances. I am
persuI;ded that the whole record establishes that the dispar-
it\ between Ramos' and the less senior drivers' earnings
was not caused hb discriminatory work assignments, but is
consistent with Respondent's treatment of Ramos which
predated the I nion's organizational activities. Based upon
the foregoing. I shall recommend that this allegation of the
complaint be dismissed insofar as it pertains to the discrim-
ination against Ramos.
(2) Cunningham
I am persuaded Respondent discriminated against Cun-
ninghaim in assigning him work because of his union sym-
pathies and activities. Following Cunningham's return to
work from being discriminatorils laid off, almost all of the
less senior long-haul drivers earned more money than he
did for 6 consecutive months, January through June. de-
spite the fact that during such an extended period of time
there should normally hbe a correlation between earnings
and seniorits 2.' This should hai e been especiall, true from
.I;anu;ar through earl Mas w hen seniorits is even more
importa;nt in work assignments due to a lack of work. Not
onl\ did this disparity between Cunningham's earnings
and the earnings of the less senior drivers start immediately
after Cunningham was laid off because of his union activi-
ties but. as I hasve found previously, early in 1977 Cunning-
ham indicated to Respondent that he was an avid union
adherent wvho hid soted for the Union in the representa-
tion election. Ihese circumstances in their entirety per-
suade me that the General Counsel has proven that Re-
spondcnt illegall? discriminated against Cunningham
during the first and second quarters of 1977 in assigning
him work a.nd as a consequence he earned less money than
he normalhl would ha,e earned.
It 1liCK Rillin . hltet tti.- ll IhCI il c l 1 [I, t lilll1). Ilit ( illlnlTgh ittll had
1[h ""'t -111k t ri , m]\ ..IIIN . 1- - rqtt i '5iIc\ 11
.
1i i Cemrpl,\r 'C Uli leh s Nenl1 rll\
329
I)EC( ISIONS OF NATIONAI. LABOR RELATIONS BOARI)
The conclusion that Respondent discriminated against
('unningham so as to cause him to earn less money than he
normally would have earned is bolstered hb the unusually
large number of assignments made to ('unningham for
trips to Empire, Nevada, immediately following Respon-
dent's knowledge that he was an avid union adherent who
had voted for the UJnion in the representation election.
Thus, Cunningham was the Linion's election observer at
the February 8, 1977, representation election and following
this election, in response to Chief Mechanic Buxton's ille-
gal interrogation, Cunningham indicated he had voted for
the Union. )uring the remainder of i:ebruary and in
March and April 1977, ('unningham received 31 different
job assignments, 15 of them to Impire., Ncada, which is a
distance of 212 miles round trip.21 A 16th assignment was
to Sparks, Nevada, a distance of 6 miles.
Cunningham credibly testified that before the election,
during his 5 months of employment, he only rarely was
assigned the Empire trip, but normlally was assigned sub-
stantially longer trips. ('unninghamll further credibly testi-
fied that his postelection assignments to Empire weiere un-
usual inasmuch as, at the same time he w\as being assigned
the Empire trips, long-haul drivers with less seniority were
being assigned to longer trips which paid more money. Re-
spondent presented no evidence to controvert this testi-
mony and the disparity between Cunningham's earnings
with earnings of the drivers with less seniority during this
period corroborates his testimony.
Respondent's failure to explain its disparate treatment of
Cunningham in connection with the Empire assignments,
the timing of these assignments coming hard on the heels
of Respondent's knowledge that he had voted for the
Union and wa.s a leading union adiherent, and
('unningham's previous illegal lasoff on account of his
union activities convince me that Respondent in making
the Empire assignments. rather than longer trip assign-
ments, to Cunningham was motivated by a desire to penal-
ize him for voting for the nion. This discriminatory work
assignment reinforces the conclusion that the reason for
the disparity between his earnings and those of the less
senior drivers for the first 6 months of 1977 was ai result of
Respondent's discrimination against him because of his
union activities.
( unniighanit testflieCd that I r the ' -I 2 1IIIl)ti s 1 ll i l tC clCtiL ,I hc
was continuotlos assigned the I lllplrc rnill whcrc a, ilib diil'cr tirp.it 1hii-
mitted to Respondent show that dulring this 2 I 2 Ionilh pcit .d. I chrillar,,
through April 22, he received 28 woirk '.imsinlcni.i 15 iof whichl Cie to
Inmpire. In assessing ( unninghainls crcdihilits I hase carelulls cO,,ildcled
whether this testiminy is indicadllt c of . ploclhlit toi cx.taggci e thus I.lak-
ing his testimony il generail unrcliihle As I h ave mindlliitcd prciIuusis, ( Ull-
ningham. who is still cmployed h Respoidcnlt testified with 1anI .r of Can-
dor alid sincerits ind ilplessecd miC ill gn[ICld ais tilLlsworih, witlness
Recognizing that oftlen a: witilcss' IiIprCSsie denliianor like hke;lt,. lIes ill
the ec of the hcheldcr. i ;ai pcrsuoldcd th.at hil caiggtclili.ll houit tlhi
frequency of his ,iasl. il lll c t Jil t I cli l iC d os rlel i IIIFIil/I ( ulilriStulli i .ll i
oiverall credihilits. In this rcgard. I .ai (i tfcile pimio that thc itlpatt ol
suddenls receiving I lmpire a.issgltliclli otcil S( peclcCnt of (he titli iiil
2-1 2-1iloith period. uheicils dtllrlg hii s 1 ri v pT i iS I llt lths of CIplllplsnl ct1 1
he was rarel a;lssigned to I llle, u.S c.lculte Itd i lla h 1iCt ipsliS ac of tililC ti
leave ihe impression in ( unninrhlll itld hiat this iwas c'-ctlliall s tile
onlb iasignlment heing llidC t 1u l illii dtlli th l 2 I 2 Ilitlllh periodl
Respondent failed to produce sufficient evidence to re-
hut the General Counsel's prima facie case. Respondent
offered into evidence the March 25. 1977, affidavit of dis-
patcher Kim Peterlin. who died prior to the hearing, which
was taken by Respondent's counsel in connection with this
litigation. Respondent urges that this affidavit tends to
prove that in dispatching Ramos and Cunningham that
Respondent did not change its dispatch procedures so as to
discriminate against them. The General Counsel objects to
the admission of this affidavit as inadmissible hearsay. I
agree with the General Counsel. There was no opportunity
for the Gjeneral Counsel to cross-examine the affiant, nor
in m s view was the affidavit admissible under Rule
80()4(b)(5) of the Federal Rules of Evidence, for I do not
think the affidavit has equivalent circumstantial guarantees
of trustworthiness. In the event, however, that I have erred
in excluding it. I note that while the affiant generally states
'there has been no change in my scheduling procedures
since September or October 1976" the affiant fails to ex-
plain wuh Cunningham. after being recalled from his ille-
gal layoff, earned leas money than several long-haul driv-
ers with less seniority for 6 consecutive months. Likewise.
the affiant fails to explain why, immediately after Respon-
dent's discovery that Cunningham was a leading union
adherent and had voted for the Union, Respondent
abruptly and contrary to past practice assigned him num-
erous trips to Empire rather than assign him the longer,
more financially rewarding trips which were assigned in-
stead to less senior emplovees. In short. the information
contained in the affidavit does not refute the essential ele-
ments of the General (Counsel's prima facie case.
Based upon the foregoing I find that during the first and
second quarters of 1977. in violation of Section 8(a)(3) and
(I ) of the Act, Respondent discriminated against Cunning-
ham in the assignment of work because of his union sym-
pathies and activities, thereby causing him to suffer a loss
of earnings.
3. Manz' discharge
a. The f/acts
As I have found previously Manz, Ramos, and Cunning-
ham were the only laid-off long-haul drivers who returned
to work for any significant length of time. Manz returned
during the week ending November 20 and worked for less
than a month before he was discharged. The General
('ounsel contends that the discharge violated Section
8(a)(1), (3), and (4) of the Act. The facts are as follows.
On Saturday., December 11. Manz was assigned a lum-
ber delivery to Respondent's facility in Mammoth Lake.
(alifornia. On route he also made a delivery to contractor
Wayne l ong. Manz' son accompanied him. While unload-
ing the truck at Momrnmoth Lake. Respondent's manager of
that facility, Bob Greenwood, observed Manz' son and
told Manz that his son should not have been with him.
On Monday, December 13, Manz did not work. He testi-
fied for the Union in the Board hearing that day in connec-
tion with the Ulnion's representation petition for an elec-
tion among Respondent's long-haul drivers. Manz was one
of three long-haul drivers who testified on behalf of the
330
HOME LUMBER & SUPPL.Y CO.
Union. 22 Present for Respondent at this hearing was Sales
Manager Davis.
On Tuesday, December 14. Manz worked.
On Wednesday, December 15. Manz again worked and
when he returned that afternoon from his assignment was
assigned another trip for the following day. Manz immedi-
ately began to prepare his equipment for the scheduled
trip, but was momentarily interrupted by Chief Mechanic
Buxton who, in substance, told Manz that it was against
the Company's rules and regulations for Manz to haul pas-
sengers. After making this statement, Buxton instructed
Manz to continue with his work. But. 5 minutes later, Bux-
ton instructed Manz to go into Davis' office to pick up his
paycheck. Manz complied. Dais told him he was dis-
charged.
Respondent's long-haul truck operation is under the ju-
risdiction of the United States [)epartment of I ransporta-
tion which maintains rules and regulations with which in-
terstate motor carriers, like Respondent, must comply. One
of these rules in effect prohibits drivers from carrying un-
authorized passengers in their trucks. In addition. Respon-
dent's insurance coverage for its trucks prohibits its drivers
from carrying passengers. Thus, it is not surprising that
since December 1973 Respondent has maintained a rule
which prohibits its drivers from carrying passengers other
than fellow employees. 2t
Ordinarily employees of Respondent are not abruptl'
discharged for violating Respondent's work rules, hut are
first given oral and written warnings for rule infractions. In
fact Respondent has notified its employees that they will
not be discharged for work rule infractions "unless there
have been previous oral and written warnings, except
where the cause for discharge is so aggravated that there
can be no real argument about immediate termination of
employment." It is undisputed that Manz' misconduct of
carrying his son as a passenger was a first offense and that
Manz was the only long-haul driver ever disciplined for
carrying an unauthorized passenger. I here is evidence that
Respondent's representatives have condoned the carrsing
of nonemployee passengers by the long-haul drivers. In
1976, prior to the layoffs herein. long-haul driver Ramos
was assigned a Saturday trip, at which time Sales Manager
Davis suggested that Ramos take Ramos' wife along for
company.4 Likewise, late in October 1976, or earlN No-
vember 1976, long-haul driver Hayslip. who had just been
hired by Respondent and was preparing to go out on his
first assignment, asked Chief Mechanic Buxton, who with
Davis jointly supervises the long-haul drivers, whether it
was all right for him to carry a passenger. Buxton told him
it was all right to take a passenger.'2 Hayslip took a friend
of his along on this trip.
t2 Ihe IwiO other witnesses were lonF-haul irl crs Knudsoin and ()herhol-
Zer
lr Ihere is a sharp coznfltlt aitonig the eser.al' ese tcaliled Iht Respoln-
dent and the General ( ounsel ,:hether Respondent's rule iitadl relu:1on
including the rule itgalnsl ¢arrinlg p. isengerr .w ere posted dulrll t tic InilC
material hereon. I hase noit rc, l,,ed this dispute he.aucll Its esi.l, ton. iIrl ii\
opinilon. does nol effect the outcolmne of the ulttliltlte ,sule iBirl..ed herllil
Based upon Ramnos credible tcsilnlln\. t)a.ils specificalll idemed en-
gaging In this conduct Ramos Impressed me as the more IriLtiirlhtl u.Ni
ness
Ba.sed upon the credible antd undenled tei trllToi ln IO i lip
b. L Ititmate findings and discussion
The record reeals Manz violated Respondent's work
rule prohibiting the long-haul drivers from carrying non-
nemployee passengers and was ostensibly discharged for
doing this. It would seem this should end this matter, but in
cases of this sort we have repeatedly cautioned, as stated
byv the court in '.I..R.B. v. Aver Lar Sanitarium, 436 F.2d
45, 49 50 (C.A. 9. 1970):
. . . the cases are legion that the existence of a justifi-
able ground for discharge will not prevent such dis-
charge from being an unfair labor practice if partially
motivated bh the employee's protected activity: a
business reason cannot be used as a pretext for a dis-
criminators firing . ... The test is whether the busi-
ness reason or the protected union activity is the mov-
ing cause behind the discharge . . . . In other words,
would this employee have been discharged but for his
union activit's? [Citations omitted.]
Here I am persuaded for the reasons set forth below that
Manz' breach of Respondent's no-rider rule was seized
upon b' Respondent as a pretext to justify his discharge
and that the moving cause behind his discharge was Re-
spondent's union aninius.
Respondent discharges employees without a prior warn-
ing. as it did Manz, only in those extreme situations "where
the cause for discharge is so aggravated that there can be
no real argument about immediate termination of employ-
ment." In the instant case, Manz did not engage ;n such
aggravated and gross misconduct so as to warrant the dras-
tic and precipitate action of discharge. While I do not con-
done his misconduct, I am persuaded that during the nor-
mal course of business it would not have provoked the
extreme response of discharge. I recognize that it is im-
proper for the Board or the courts to second guess the
manner in which an employer enforces its work rules; how-
ever, aside from the nature of the offense which does not
impress me as being a capital one warranting discharge, the
record reveals Respondent does not regard a violation of
its no-rider rule as sufficiently serious to warrant discharge
for the first offense. Thus, the manager of Respondent's
Mammoth Lake facility only saw fit to casually mention
that Manz was acting improperly in carrying his son as a
passenger and did not even communicate this misconduct
to Manz' superiors.2? And, an even more significant indica-
tion that Respondent does not regard an initial breach of
its no-rider rule as a capital offense warranting the penalty
of immediate discharge is further illustrated by the fact
that, as described vupra, the persons who jointly supervise
~ Sale, Manilager I)a isltestified that he learned about Manz' misconduct
frotm colntractor Wal tie I )ie. not from the manager of Responden's Mlam-
mioth iake fatiliis Da).is testified that L ong. "a fer eI da," after Mant'
[)eceinher II l dellers. mentioned to l)asls that Manz in making the deliv-
cr s wis a icc.iptpallred h\s .i .ung bos. Long was not called as a wislness t)
coirroilhoral I[)ais. uho in testilfing about his consersatlon usith Long uas
not nci lilnti l () O the Iliporl ilt mlrtter of shen I ong guie him this infir-
iiihton, 1)D'.i ',1i. ClX tIstflied I"a fets da.is," after the dehIsers and. upon
CiTose e lttlltl Iaii1 u.hetI) aked to he Inrre speciflic. aguels eslsvsels tesIll-
tied "I \ould isa It u .ould Ie he seen the 10th and Il5h or I.th of Decem-
her'- Ild. ushin .a ked ho,, iong befoerc Manz' terminalion the con.ersahllon
s.th I onec to...k laiel hestitaniils tenified. " I. ould .is ,ine da\ at the most
I ti, ,ell
331
)DE (ISIONS OF NATIONAL LABOR RELATIONS BOARD
the long-haul drivers have permitted long-haul drivers to
carry passengers in their trucks in derogation of Respon-
dent's no-rider rule.
Also significant in evaluating whether Manz' infraction
of the no-rider rule was the real reason for his discharge is
Respondent's failure to call as a witness the person who
made the decision to discharge him. Davis testified that he
merely authorized Manz' discharge and it was Chief Me-
chanic Buxton who made the decision to discharge Manz.
Buxton, who is still employed by Respondent. did not testi-
fy and no explanation was offered for his failure to testi-
fy.27 I therefore draw the adverse inference that had Bux-
ton been called his testimony would not have corroborated
Davis' and would not have supported Respondent's de-
fense.
Based upon the foregoing. I find Respondent's ostensi-
ble reason for discharging Manz was not its real reason,
but that Manz would not have been discharged during the
normal course of business for his violation of Respondent's
no-rider rule. I further find that. when the pretextual na-
ture of the discharge is considered in the context of Manz
earlier discriminatory layoff and the timing of the dis-
charge coming as it did hard on the heels of Respondent's
knowledge that Manz was still supporting the Union,-h it
establishes that Respondent's union animus was the mov-
ing force behind Manz' discharge. It is for these reasons
that I conclude that Respondent violated Section 8(a)(3)
and (I) of the Act by discharging Manz.
The complaint also charges Respondent with violating
Section 8(a)(4) of the Act on the theory that the discharge
was motivated in part because Manz gave testimony for
the Union in the representation case. There is insufficient
evidence to support this contention. although the timing of
the discharge makes it suspect in this regard. However.
while Manz' appearance as a witness for the Union in the
representation case obviously informed Respondent that
he was a zealous union adherent. I am not persuaded that
it was animus toward Manz for so testifying. as contrasted
to Respondent's union animus. which prompted his dis-
charge. Accordingly. I shall recommend this portion of the
complaint be dismissed.
IV liIIt R[i RS-N I , Ii ION ( \SI
A. 7lie Oth/c lion.s
The Union's objections in the representation case re-
ferred to me for decision allege in substance that (I) Re-
spondent threatened to sell its equipment and discontinue
its long-haul operation if the long-haul drivers supported
the Union, and (2) laid off the nine long-haul drivers be-
cause of their union activities. Also before me as objection-
able conduct, even though it is not specifically included in
the Union's objections. are Respondent's unfair labor prac-
tices found herein which occurred between November I 1
'7 s indicated preLiouL It i undiLpulLtcd uthat aLppito ILatIC. I I
months prior to Manin' dllLargc t13l\tIon ;lIL vc¢d I. I -lL i -IMt i I, ItI I{ L!II
it pl sellger i ln ,lolatilln of Rcspndent's l 11- TidCt LtllC
Respondent learned Ihlm ,lIhTn Saik Mana\t.li 1)L.' lhei\cld Sailn
tIestils ilfor tile t IllLo aL tile I)ce lhcL iI j C. C IL L It ll Jlt l
the date the Union filed the representation petition, and
Flebruarv 8. 1977. the date of the representation election.
See Pure (them (CpoXoration, 192 NLRB 681 (1971).
Lpon the basis of the findings and conclusions of law
previously set out in this Decision, wherein I found that
Respondent during the critical period committed several
unfair labor practices, I conclude that by engaging in these
unfair labor practices Respondent prevented the employ-
ees from freely exercising their choice of collective-bar-
gaining representative in the February 8, 1977 election.29
B. 71The (hallenge.
In the Iebruary 8, 1977. representation election the tally
of ballots showed that of approximately 10 eligible voters,
3 cast ballots for and 3 cast ballots against the Union.
I here were four challenged ballots, sufficient in number to
affect the results of the election. Three of the challenged
ballots were cast by Jack Hayslip, Ted Knudson, and Rich-
ard Eastwood whose layoffs on November 3, 1976, have
been found herein to have been unlawful. The fourth chal-
lenged ballot was cast by Richard Manz whose layoff on
November 3. 1976, and discharge on December 15, 1976,
have been found herein to have been unlawful. The Re-
gional Director has referred the validity of these four chal-
lenges to lme for decision.?L
Regarding the challenges to Knudson's and Hayslip's
ballots the record establishes that following their unlawful
la'soffs each was offered full reinstatement prior to the date
of the election. When the, failed to respond to these offers.
Respondent discharged thlem on December 15, 1976. There
is no contention that their discharges were unlawful. Under
these circumstances, I shall recommend that the challenges
to the ballots of Knudson and Hayslip be sustained.
Regarding the challenge to Eastwood's ballot the record
reveals that at the time of his unlawful layoff he was absent
from work on a medical leave of absence and because of
this his recall was conditioned upon his obtaining a satis-
factory medical release from a physician. On several occa-
siIons after his layoff. but before the date of the election.
Respondent offered Easts ood full reinstatement provided
he submitted a satisfactorv medical release. Eastwood was
discharged on December 15. 1976, after he had failed to
submit such a release. There is no contention that his dis-
charge was unlawful. Under the circumstances. I shall rec-
ommiend that the challenge to Eastwood's ballot be sus-
tained.
Regarding the challenge to Manz' ballot, the record re-
veals that he was reinstated following his unlawful layoff
but, as found previousl., was discharged on December 15.
1976, in violation of Section 8(a)(3) and (I) of the Act.
Accordingly, I shall recommend that the challenge to his
ballot be overruled.
I'1 r JLic lh/ this CI1l, lllN I hl1. L 1h 10 , 1e reieCd poip nl tIh dIlscrlllllinatorN
lol\1 1 H I'[ L.t lltl" inL[llillls lble h i llt-r r IIC ltll ill (L II( lIlllfIu lll, lIldasmltlll
1I [lhP Co l ,dct ., LLCu t Illslidc ilthe rlllal tiiLC period
I Il clct Rc Lon d l l 'l . !tclIt 11I1 thill IIL thallcnL es 0of tlIxlip, KIlud
oI11 Lr i atI s.ooi ,,. LlO piopcl, el , iLr TlLe lor dcisLi ,LL
332
HOME LUMBER & SUIPPI Y CO.
C. Recomrli'lindaotion
Based upon the foregoing. I shall recommend that the
Regional Director open and count the ballot cast by Rich-
ard Manz in Case 32-RC 17 (formerlx Case 20 RC
13882). and prepare and serve on the parties a revised talls
of ballots. If the revised talkl reveals that the Union has
received a majority of the v:alid ballots cast. the Regional
Director shall issue certification of representative. How-
ever, if the revised tally shows that the Union has not re-
ceived a majority of the valid ballots cast, the Regional
Director shall set aside the election results, dismiss the peti-
tion, and vacate the proceedings.
CON( I t SlONS (OF I.^ A
I. The Respondent, Wickes Lumber, a Division of T he
Wickes Corporation. d /b;'a Home Lumber & Supply ('om-
pany, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs. Warehousemen and Hlelpers
Local Union No. 533, affiliated with International Brother-
hood of Teamsters. Chauffeurs. Warehousemen and
Helpers of America. the I nion herein. is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union ssmpa-
thies, by informing an employee that employees had been
laid off because of their union activities. and bhy threaten-
ing employees that if the emploNees supported the Union
that Respondent would discontinue its long-haul opera-
tion, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)( I) of the Act.
4. By discharging Richard M1anz because of his union
sympathies and activities, Respiondent has engaged in un-
fair labor practices within the meaning of Section 8(la)(1)
and (3) of the Act.
5. By discriminating against L.ewis Cunningham in the
assignment of work because of his union sympathies and
activities. Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) and ( I ) of the
Act.
6. By laying off the employees named below because of
their union activities, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(I) of the Act:
Robert B. Rogers
Paul A. Ramos
John H. Oberholzer
Ted H. Knudson
Howard Zumbaugh
Lewis Cunningh.am
Richard Eastwood
Richard Manz
Jack Hayslip
7. The afotresaid unfair labor praictices affect conmercce
within the meaning of Sectiotn 2(6) and (7) tof the Act.
-I H Ri FIn r)
Haaving found Respondent has engaged in unfair labor
practices violatixe of Section 8(a)(l) and (31 of thile Act. I
shall recommend that it cease aind desist therefrom and
take certain affirmative action in order to effectuate the
policies of the Act.
Haiting found that Respondent on or about November
3. 1976, unlawfully laid off Robert Rogers. Paul Ramos,
John Oberholzer. led Knudson, Howard Zumbaugh.
Lewis Cunningham. Richard Eastwood, Richard Manz.
and Jack Ilayslip. I shall recommend that Respondent of-
fer Robert Rogers and Howard Zumbaugh immediate full
reinstatement to their former positions or, if these posi-
tions no longer exist, to substantially equivalent ones, with-
out prejudice to their seniority and other rights and privi-
leges. and make them and Paul Ramos, John Oberholzer,
Fed Knuldson, . Lewis Cunningham. Richard Eastwood.
Richard Manz, and Jack Hayslip whole for any loss of
earnings the', max have suffered by reason of such discrim-
inationl 2 bs payment to the aforesaid Rogers and Zum-
baugh of a sum of money equal to that which they normal-
IN would have earned as wages from the date of their
lai,offs to the date of said offers of reinstatement; by pay-
ment to the aforesaid Ramos. Oberholzer. Knudson, Cun-
ningham. Eastwood. Manz, and Hayslip of a sum of
money equal to that which they normally would have
earned as waiges from the date of their layoffs, to the date
thex were offered reinstatement or were reinstated. 3 3 less
the net earnings, if an,. of each of the aforesaid discrimina-
tees, respectivelyx earned during the said period or periods.
Backpay shall be computed in the manner established by
the Board in F. Ht. Woolworth Companv. 90 NLRB 289
(1950). and with interest thereon as prescribed by the
Board in Florida Steel C'orporation. 231 NLRB 651 (1977).
See. generalks. I..v Plumbing & Heating Co.. 138 NLRB 716
1962).
Iiaving concluded that on December 15, 1976. Respon-
dent unlawfully discharged Richard Manz. I shall recom-
Ihc reoli doe , IT ibl ,a 1d thai Rc.pondent has satisfied its rein-
, ( i itm ,nI lo , a . d dli.Clillinilaes Rosers, and uiumhaugh [ reject
RcolndlniC,, .Intentien 1Iha1 its November 1 I. 1976. fIrnm letter sent to all
iline of Ihe dlstiillinattes ws;ls sufficient to toll it, reinsltlement obligation
irid 1 cl prie,,nt , fithiel increa..e in it, piotential h.ckp.i liabhiliis The
lc[Icl lch 1i, pertllnnt pi.rl nlfornms the nine discriminatees that "four
dll ers ldl 1 liv h.ic an opporrlunilt Ii return from lavoff iIn a temporars
hibl" .lad lurtiiher inllricts them. "If ,ou are Interested in returning to work
pile lrc i eplinc Tie t1ii .ice ,I- c.me into the iffice," does not constitute a
.pii. l . Ini tlllUl,t,..l Iffer of reinilemnt ietrn t shh cniiploiees i.ho ha.e
lbeci didflinriliaeeril I lid off ti centitled I. receine See Rea Tr-r Ating ( 'no
p-,, /In, I',i NI RB S20. C26 1 1969) ikewise. I do. not bhellee
?u/tihi.h stateenlnl Ihia he *ould nc er return to work for Respondent.
nil.rle hCli hic A, itl, informed Of his dlcirtllalllintl r lasff. reliees Repion-
dlci t I ii i r tllcllathn It} i ffer hiit reinstatenent where. .is here. it is plain
l ZIiiLi ?umh i', -riltent c ,iti pruwked hx Respondent% unfair labor
pr ictic anid thcre is no e, ldencr e Ihal Respondent relihe upon this (ate-
rlilil II 1i1 inikinLn .i a.lid iffer of relnstatemenl
I he rccO,id csahilhc, tht Res pondent made .offer. if reinstatenent to
d,!riiiiiiic.lc Rnlli., ()hetrhoier Kniudson. ( unnlllnharlt. . st. ood.
N.tui lnd d[{sili ll .11 thi M\.ll.ti Ramos Cuintingh.arn and Oherhoi7er
. t1In[i]\ tcd lrICd, ,' Ork the rect ord ailso reeals thii these offers were
ifliicnt i¢ i sti f, Repiondent'i reinstatement obligatilon aind hence toll it,
h.lckpas hih.lhlD I1 III 'lloCCtnr) ,ith the discrimin.ators lasiff of these seen
dlllll rii[L'CtC l Bsut I l ithe lcorid 1i tll clear a.s It the exact daues ihen
Ll-nh .liid licirls. lltilci t offers ;cre m lade or the discrlrillllatees relurned to
-. rk. I shAi ] .-c tihe ICoLlaiion if (hls cuesion for Ite ico lpl.liance si.ge if
Ihli pIr.c(lotc.lri
Rcsplindct i.1 ,ll ha.ce ain opportunits during the conilphaince stage if
thi, proceeding It deilotisirale that for some or all if the dlstrltilnatorils,
I.lid-oli CllltplocCs lthete i not w.srk a.ailabhle durine Iheir respective back-
pr;i period, ind lhati dt. Iinlllie Fai r, .... d isiuld I, IaI h.ie vmrked dur-
cll Ils ii itk].ipj pI)I'd hCCiLNC hCt ' Ouis n .a nledica.l lei'.ve of aibsence
333
DE (CISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that Respondent offer him immediate and full rein-
statement to his former job or. if it no longer exists, to a
substantially equivalent one. without prejudice to his se-
niority and other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reasons of the discrimination against him, by payment of a
sum equal to that which he normally would have earned
from the date of the unlawful discharge to the date of said
offer of reinstatement, less his net earnings. if any, during
that period. Backpay and interest thereon shall be comput-
ed in the manner prescribed in F W. Woolworth C(ompanv,
supra, and Florida Steel Corporation, supra. See, generally,
Isis Plumbing & Heating Co., supra.
Having concluded that during the first and second quar-
ters in 1977 Respondent unlawfully discriminated against
Lewis Cunningham in work assignments, I shall recom-
mend that Respondent make Cunningham whole for the
loss of earnings suffered as the result of this discrimination.
with interest thereon.
As the unfair labor practices committed by Respondent
were of a character which go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and
from in any other manner interfering with the rights of
employees guaranteed by Section 7 of the Act. V I..R.B. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941).
The General Counsel also seeks a remedial bargaining
order. The law is settled that where a representation elec-
tion has been conducted such an order is appropriate if the
Union at one point of time was designated as the collec-
tive-bargaining representative by a majority of the employ-
ees in an appropriate unit, Respondent engaged in miscon-
duct sufficient to set aside the election, and the
Respondent committed unfair labor practices which had
"the tendency to undermine majority strength and impede
the election processes." 34 N.L.R.B. v. G('scl Packing Co.,
Inc., 395 U.S. 575. 614 (1969).
In the instant case Respondent, as I have found supra,
engaged in misconduct sufficient to vacate the election.
Also, the record establishes that immediately prior to Re-
spondent's unfair labor practices a majority of the employ-
ees in an appropriate unit signed cards designating the
Union as their collective-bargaining representative. In this
regard, the parties agree that all of Respondent's long-haul
drivers, excluding statutory supervisors, constitute an ap-
propriate bargaining unit. It is undisputed that on Novem-
ber 2. 1976, a substantial majority of the long-haul drivers
employed in this unit, 9 out of 13, signed cards which un-
ambiguously recite that the card signer authorizes the
Union to act as the employee's representative for the pur-
poses of collective bargaining. There is no evidence that
any of these cards are invalid.
Based upon the foregoing and the nature and the extent
of Respondent's unfair labor practices found herein. I am
of the opinion that the Union is entitled under N.L.R.B. v.
Gissel Packing Co., supra., to a bargaining order. Thus, at
14I he fact that in the representaltioll proceding herein I am reclm-
mending that the Regioanl Director issue .a certlficatlion of represenlalllne to
the tinion if the revised tall of hballots results im a unioin rlalOilti does nol
preclude the issuance of a remedial hbarp:inling order (;lari :tilurihwirl old
Michael 1 alsh, ei ai , a ( aliorinia Linmild Partnerrhil, d. h e h lh t/,ddli
('rmpant, 231 NIRB 383 ( 1977)
the outset of the Union's organizational campaign. Re-
spondent, in violation of Section 8(a)(3) and (I) of the Act,
laid off 9 of the 13 unit employees in order to discourage
the employees from supporting the Union. This illegal con-
duct carried a message, the meaning of which could not
have been misunderstood by the unit employees. If any
employee failed to receive the message, this was soon
remedied bv Cabinet Shop Manager Rassbach's illegal
statement to one of the employees that the employees had
been laid off because of their union activities. And, if em-
ployees still had any doubts as to the extent Respondent
was prepared to go to defeat the Union's organizational
effort, this doubt was removed by Sales Manager Davis'
illegal threat made to two of the employees that, if the
eniplosees supported the Union. Respondent would dis-
continue its trucking operation thus causing them to lose
their jobs. Finally., upon recalling Manz and Cunningham
from their illegal layoff and learning that Manz and Cun-
ningham vwere still aid union supporters, Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discharging
Manz and discriminating against Cunningham in the as-
signment of work.
I am persuaded that these unfair labor practices clearly
"had the tendency to undermine the majority strength and
impede the election processes." N. L.R.B. v. Gissel Packing
('o., .supra at 614. Under these circumstances a bargaining
order is warranted not only to protect the employees' right
to determine freely whether they desire union representa-
tion. but also to insure that Respondent does not profit
from its own wrongful conduct. The Holding Company. su-
pra, and cases cited at footnote 9. Moreover, I shall recom-
mend that Respondent's bargaining obligation commence
as of November 3. 1976. the date on which Respondent
committed its initial violation of Section 8(a)(1) and (3) of
the Act and "embarked on a clear course of unlawful con-
duct." Trading Port Inc., 219 NLRB 298, 301 (1975).
Upon the basis of the foregoing findings of fact. conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recom-
mended:
ORDER 35
Respondent, Wickes Lumber, a Division of The Wickes
Corporation, d/b/a Home Lumber & Supply Company.
Reno, Nevada, its officers, agents. successors, and assigns,
shall:
1. ('ease and desist from:
(a) Discouraging membership in, or activities on behalf
of, Teamsters, Chauffeurs. Warehousemen and Helpers
Local Union No. 533, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, by
discharging or laying off its employees, or otherwise dis-
criminating against them in any manner with regard to hire
or tenure of employment or any term or condition of em-
" In the reenr no exceptlrinsare filed as prok ided h? Sec 1i02 46h f the Rules
and Regulations Ilf the Naiinal I .ahor Relatrio, Board the fiindIrls. cnc lu-
iorns, and recommended Order herein shall, as pro) ided In Sec 10t)2 48 lthe
Rules and Regulations. he adopied bh the Board and bec iomle its findirigs.
conclusions. and Order, and all ohbjections thereto shall he deemed ;aIied for
all purposes.
334
HOME LUMBER & SUPPLY CO.
ployment because of their union membership or activities.
(b) Interrogating employees about their union member-
ship, union sympathies. or union activities.
(c) Threatening employees with discharge or layoff if
they support the above-named labor organization or any
other labor organization.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Recognize, effective from November 3. 1976, and.
upon request, bargain collectively and in good faith with
Teamsters, Chauffeurs, Warehousemen and Helpers Local
Union No. 533, affiliated with International Brotherhood
of Teamsters. Chauffeurs. Warehousemen and Helpers of
America, as the exclusive representative of all employees in
the appropriate unit. with respect to rates of pay. wages.
hours, and other terms and conditions of emplo yment.
and. if an understanding is reached. embody such under-
standing in a signed agreement. The appropriate bargain-
ing unit is:
All long haul drivers of Respondent employed at its
250 Chisolm Street, Reno. Nevada. location, excluding
all other employees, guards. and supervisors as de-
fined in the Act.
(b) Offer Robert Rogers. Richard Manz. and Howard
Zumbaugh immediate and full reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantially
equivalent ones, without prejudice to their seniority and
other rights and privileges, and make the aforesaid employ-
ees and Paul Ramos, John Oberholzer. Ted Knudson.
Lewis Cunningham, Richard Eastwood, and Jack Hayslip
whole for any loss of earnings they may have suffered as a
result of the discrimination against them, in the manner set
forth in the section above entitled The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amounts of backpay due and the rights of
reinstatement under the terms of this Order.
(d) Post at its place of business copies of the attached
notice marked "Appendix." 36 Copies of said notice, on
forms provided by the Regional Director for Region 32,
after being duly signed by Respondent's representatives,
shall be posted by Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced. or covered by any
other material.
(el 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.
Ir Is Ft RHFER ORDFRED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent
violated the Act otherwise than as found herein.
I 15 Is: RltKtR i)IRi Tti) that the Regional Director for
Region 32 shall, within 10 days from the date of this Deci-
sion, open and count the ballot cast by Richard Manz in
Case 32-RC-17 and prepare and serve on the parties a
revised tally of ballots. If the revised tally reveals that the
Petitioner has received a majority of the valid ballots cast.
the Regional Director shall issue a certification of repre-
sentative. However, if the revised tally shows that the Peti-
tioner has not received a majority of the valid ballots cast,
the Regional Director shall set aside the election results,
dismiss the petition, and vacate the proceedings.
' In the esenl that this Order Is enforced hb :a Judgment of a United
Statec ('iourt of Appeals, the .,ords in the notice reading "Posted hs Order
of the Na.lillall I.ahbor Relallon, Board" shall read "Posted Pursuant to a
Judgilent if the t nired States ( ourl of Appeals Enfircing an Order of the
Niionil I habor Relatlon Boardr
APPENDIX
Not( F To EMPLOYFES
Postil BY' ORDIR OF THE
NAIIONAI LABOR REI u.TIONss 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 we violated the law and has ordered us to
post this notice. We intend to abide by the following:
Section 7 of the Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or other
mutual aid or protection
To bargain collectively through representatives of
their own choosing
To refuse to do any or all of these things.
WIF s1'1. NOT discourage membership in Teamsters.
Chauffeurs. Warehousemen and Helpers Local Union
No. 533, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or in any other labor organization of our
employees, by discharging or laying off any of our
employees or by discriminating in any other manner n
regard to their hire or tenure of employment or any
term or condition of their employment.
W wit i 'Noi interrogate our employees about their
union membership, sympathies, and activities or
threaten our employees with discharge or layoff if they'
support the above-named Union or any other union.
WI- witn l o in ans other manner interfere with,
restrain, or coerce our employees in exercising their
rights under Section 7 of the National Labor Relations
Act, as amended.
WL wtii. offer Robert Rogers, Richard Manz, and
Howard Zumbaugh immediate and full reinstatement
to their former jobs or. if those jobs no longer exist, to
substantially equivalent positions, without loss of se-
niority or other rights previously enjoyed. and will
make them and Paul Ramos. John Oberholzer. Ted
335
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Knudson. Lewis Cunningham. Richard Eastwood,
and Jack Hayslip whole for any loss of earnings suf-
fered because of the discrimination against them. to-
gether with interest.
WE WILL recognize, effective from November 3.
1976. and, upon request, bargain collectively and in
good faith with Teamsters, Chauffeurs, Warehouse-
men and Helpers Local Union No. 533, affiliated with
International Brotherhood of Teamsters. Chauffeurs.
Warehousemen and Helpers of America, as the exclu-
sive bargaining representative of all employees in the
appropriate unit with respect to rates of pay. wages.
hours of employment. and other terms and conditions
of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
The appropriate bargaining unit is:
All long haul drivers employed by us at our facility
located at 250 Chisolm Street, Reno, Nevada, ex-
cluding all other employees, guards, and supervisors
as defined in the Act.
WI( KEiS LUMBER, A DIVISION OF THE WICKES
CORPORAIION, d/b/a HOME LUMBER & SUPPLY COM-
PAN5
336