Assonet Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1965

156 N.L.R.B. 350 (N.L.R.B. 1965)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By causing the discharge of Harold C. James, the Respondent Union has
restrained and coerced employees in the exercise of their rights guaranteed in Section
7 of the Act, and has thereby engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A) of the Act.
4. The Respondent Union has not engaged in any unfair labor practices by reason
of conduct alleged in the complaint to have been in violation of the Act except insofar
as such conduct has been found hereinbefore to have violated 8 (b) (1) (A) of the Act.
5. The Respondent Company has not violated Section 8(a)(1) and (3) of the
Act as alleged in the complaint.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Assonet Trucking Company, Inc.; Assonet Sand & Gravel Com-
pany, Inc. and Chauffeurs & Teamsters Local Union #526, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America .' Cases Nos. 1-CA-465.3 and 1-CA-
4750. December 27, 1965
DECISION AND ORDER
On May 25, 1965, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondents filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the General
Counsel filed with the Board the brief submitted to the Trial
Examiner.2
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in these cases, including
i Herein called the Teamsters.
2 On June 29 , 1965 , the Respondents filed with the Board copies of the weekly time-
cards of employee Stanley Mason , and moved that they be made part of the record in
these cases The General Counsel filed a motion in opposition to the request The time-
cards are not newly discovered evidence ; in fact, the General Counsel sought to subpena
them in advance of the hearing , and the Respondents presented evidence at the hearing
as to the work record of Mason during the weeks in question . In view of these facts,
the Respondents ' request that the Board receive this additional evidence is hereby denied
156 NLRB No. 35.
ASSONET TRUCKING COMPANY, INC., ETC. 351
the exceptions and briefs, and hereby adopts the findings,3 conclusions,
and recommendations of the Trial Examiner, with the following
modifications.
On May 15, 1964,¢ the Respondents sold six of their trucks, three
each to independent carriers Rezendes and Simmons, simultaneously
laid off seven of their employees, and contracted with Rezendes and
Simmons to perform the work previously done by their own employ-
ees. The Trial Examiner found, and we agree, that the Respondents
took this action without prior notice to or consultation with the Team-
sters, who were at all times material herein the duly designated bar-
gaining representative of the Respondents' employees, at a time when
the Respondents had just become obligated to pay 13 cents an hour per
employee into the Teamsters' health and welfare fund, when the
Teamsters and the employees on the job had been vigorously grieving
about the extra job duties of the drivers and about the Respondents'
earlier layoff, on May 5, of three employees without regard to senior-
ity, and after the Respondents had openly threatened to sell their
trucks and subcontract the work because of the employees' and the
Teamsters' grievances. The Trial Examiner found that by this sale
and layoff the Respondents violated Section 8(a) (5) and (3) of
the Act.
On June 26, the Respondents sold two of their trailer trucks, one
each to Rezendes and Simmons. On August 7, they laid off employees
Donald Martin, Manuel Medeiros, Frank Oliver, and Michael
Creeden, all of whom had been employed on the night shift at that
time. On August 10, the Respondent subcontracted a portion of their
yardwork to the Arruda Construction Company. The Trial Exam-
iner found, and we agree, that this action also was taken without
prior notice to or consultation with the Teamsters. He found that by
this sale and layoff the Respondents further violated Section 8(a) (5)
and (3) of the Act.
We are not unmindful of the detailed testimony presented by the
Respondents in support of their contention that they were motivated
by purely economic considerations in reaching their decisions to sell
their trucks and subcontract the work; nor are we unmindful of the
fact that this equipment was sold to bona fide purchasers not involved
31n the third paragraph of section III, B , of his Decision, the Trial Examiner sets
forth a series of remarks allegedly made by Warren Clark, an officer and director of the
Respondents , to certain of their employees . We find, as did the Trial Examiner, that
the remarks were made ; however, the record shows that they were not made in the
chronological sequence found by the Trial Examiner. The error is not prejudicial, as it
does not affect any of the critical findings or conclusions.
* Unless otherwise specified , all dates herein refer to 1964.
s As to Martin, see footnotes 7 and 8, infra.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the present proceeding. In view of the facts set forth above, how-
ever, and for the reasons set forth in his Decision, we agree with the
Trial Examiner that the May 15 sale and layoff was for discrimina-
tory reasons, and was therefore violative of Section 8(a) (5) and (3)
of the Act. Because of the economic considerations and the sale to
bona fide purchasers on May 15, we agree with the Trial Examiner's
recommendation, which is consistent with the General Counsel's posi-
tion, that it would not be equitable herein to order that the status quo
ante be restored, but rather it suffices to grant a reinstatement and
backpay remedy similar to that in Savoy Laundry, Inc., 148 NLRB 38.
We view the June 26 sale of trucks, the August 7 layoff of four of
the Respondent's employees, and the August 10 subcontracting of work
to Arruda, however, in a somewhat different light from the Trial
Examiner. Unlike the May 15 layoff, the one on August 7 seems to
have been effectuated by the Respondents solely for economic reasons.
The Respondents contend that the night shift was abolished on
August 7, solely for economic reasons and in keeping with the seasonal
nature of their business. The night shift had been added sometime
in the latter part of 1963 as a temporary measure. The Respondents
further contend that, in view of these factors, it cannot be said that
they subcontracted the night-shift work, or that they attempted to
transfer it to the day shift. The Respondents state that, following
the June 26 sale of trucks, and the August 7 layoff, they engaged
Arruda to run a 2-week cost test on their pit operations. Arruda,
using his own equipment, performed the pit operations, and in the
process temporarily displaced some of the Respondents' day-shift
workers, and eliminated some of the work which Rezendes and
Simmons had been performing. Having been satisfied that Arruda
performed the work much more quickly and efficiently, the Respond-
ents then purchased similar equipment of their own. The Respondents
state that the work being performed with this new equipment is not
work formerly performed by the night-shift employees, but rather is
the work always performed by the day shift. They state further that
no new employees have been hired since the August 7 layoff. None of
these facts is contradicted in material part.
As the Respondents sold two of their trucks on June 26, abolished
their night shift and laid off four employees on August 7, and sub-
contracted their yardwork on August 10 to Arruda, without prior
notice to or consultation with the Teamsters, we find, in agreement
with the Trial Examiner,' hat they thereby violated Section 8(a) (5)
of the Act. However, contrary to the facts attending the May 15 sale,
layoff, and subcontracting of unit work, the General Counsel has not
e Arruda's equipment , although of the same type as the Respondents', was of greater
capacity.
ASSONET TRUCKING COMPANY, INC., ETC. 353
established by a preponderance of the evidence that the later decisions
to sell their trucks , to shut down the night shift, or to subcontract the
yardwork temporarily to Arruda , were motivated by other than eco-
nomic reasons . We therefore find, contrary to the Trial Examiner,
that the layoff of the four employees on August 7 was not for dis-
criminatory reasons, and the Respondents did not thereby violate
Section 8 (a) (3) of the Act.
While we find that neither the decision to sell the trucks on June 26
nor the decision to subcontract the yardwork to Arruda was made for
discriminatory reasons, nevertheless these decisions were made without
regard to the Respondents' duty to notify and consult with the Team-
sters. However, for the reasons stated hereinabove with regard to
the May 15 incidents , and especially because the work subcontracted
to Arruda has been restored,7 we find it sufficient as to the June 26 and
August 10 violations to issue a general order to bargain and to cease
making unilateral changes without prior notice to and consultation
with the Teamsters.
The layoff of the night shift on August 7, however, creates a special
problem. We have found that the decision to shut down the night
shift was violative of Section 8 (a) (5) of the Act. While it appears
that this decision was for purely economic reasons , and the Respond-
ents have not since hired anyone to preform functions similar to those
performed by the laid -off employees, they nevertheless acted unilater-
ally and with complete disregard of the rights of the employees to
bargain about the decision and about the effects upon the four employ-
ees involved. We have found that the August 10 decision to subcon-
tract has been remedied by resumption of the work subcontracted,
and we have found that an order to restore the status quo ante of the
June 26 sale of trucks or of the May 15 subcontracting would work
an undue hardship on innocent third parties. However, the August 7
layoff is a different case. No intervening outside interests would suffer
serious injury if the action taken were undone. There is no evidence
that the Respondents were faced with an economic emergency which
demanded the abolition of the night shift on August 7. Further, the
Respondents had just 3 months earlier given evidence of their opposi-
tion to the policies of the Act, as found hereinabove . It must be pre-
sumed that the employees' laid off on August 7 would have retained
their jobs at least until the Respondents had fulfilled their bargaining
obligation . The Respondents ' violation can only be remedied by order-
ing it to do what it was obligated to do in the first place.
Accordingly , we shall order that the Respondents bargain with the
Teamsters concerning the resumption of, their night-shift work, and,
if no agreement is reached with ', respect thereto, bargain concerning
7 Except as to employee Martin , as hereinbelow set forth.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the effects of the discontinuance of their night-shift work on the four
employees laid off on August 7.8 We shall further order that the
Respondents shall make these four employees wliole for any loss of
pay they may have suffered as a result of the Respondents' unfair
labor practice. Liability for such backpay shall cease upon the occur-
rence of any of the fol lowing conditions: (1) reaching mutual agree-
ment with the Teamsters relating to the subjects which the Respondents
are herein required to bargain about; (2) bargaining to a bona fide
impasse; (3) the failure of the Teamsters to commence negotiations
within 5 days of the receipt of the Respondents' notice of its desire
to bargain; or (4) the failure of the Teamsters to bargain thereafter
in good faith. Of course, if the Respondents decide to resume their
night-shift operation and offer to reinstate the four employees involved
to their former or substantially equivalent positions, their liability will
cease as of that date. Backpay shall be based upon the earnings
which the terminated employees would normally have received during
the applicable period less any net interim earnings, and shall be com-
puted on a quarterly basis in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289; N.L.B.B. v. Seven-Up Bottling Company of
Miami, Inc., 344 U.S. 344; with interest thereon, Isis Plumbing d
Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondents, Assonet Trucking Company, Inc., and Assonet Sand &
Gravel Company, Inc., their officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Chauffeurs & Teamsters Local
Union ,x$526, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other labor organiza-
tion of their employees, by discharging or in any other manner dis-
criminating in regard to their hire or tenure of employment or any
terms or condition of employment.
(b) Changing wage rates or seniority rules in order to undermine
the Union's authority and the rights of the employees to bargain
through an exclusive bargaining agent.
(c) Refusing to bargain collectively with the above-mentioned
Union as the exclusive representative of all the employees in the follow-
8 It appears that Martin, until May or June, had worked regularly on the day shift
and at the time of the August 7 layoff was alternating on a weekly basis between shifts.
The Respondents are hence also ordered to bargain concerning the effects of the Arruda
subcontracting and its resultant new method of operation upon Martin 's rights as a
day-shift employee.
,ASSONET TRUCKING COMPANY, INC., ETC. 355
ing appropriate unit: All truckdrivers, loader-operators, plant opera-
tors, and mechanics at the Respondents' operations in the town of
Assonet, Massachusetts, excluding office clericals, professional employ-
ees, watchmen, guards, and supervisors as defined in the Act.
(d) Unilaterally subcontracting or discontinuing unit work, or
otherwise unilaterally changing the wages, hours, or other terms and
conditions of employment of unit employees without prior consulta-
tion and bargaining with the above-named labor organization con-
cerning such decision and the effects thereof.
(e) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or mutual aid or
protection, or to refrain from any or all such activities, except as
authorized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer reinstatement to their former or substantially equivalent
jobs, as available, to the following employees: Jose C. Moniz, John
Camara, Antone Costa, Omer Tessier, Glen Simcock, and Frederick
Haskins. Create a preferential hiring list containing the names of
any employees above-named for whom there are not sufficient job
openings, and, as job openings occur thereafter, offer reinstatement
to said employees to their former or substantially equivalent jobs. The
Respondents shall notify the Union and the aforesaid employees of
the establishment of such list.
(b) Make whole employees Jose C. Moniz, John Camara, Antone
Costa, Omer Tessier, Glen Simcock, and Frederick Haskins for any
loss of pay suffered by reason of the the discrimination against them,
from the date of their discharge on May 15, 1964, to the date of the
offer to reinstatement or until such earlier time as each secures, or did
secure, substantially equivalent employment with another employer,
less intermediate earnings.
(c) Make whole Donald Martin, Manuel Medeiros, Frank Oliver,
and Michael Creeden 9 for any loss of pay suffered by them in the
manner and under the conditions and circumstances set forth herein-
above.
G Michael Creeden had also been one of those unlawfully laid off on May 15, 1964.
He was rehired sometime before August 7, but the exact date does not appear in the
record. He is entitled also to backpay from May 15 to the date upon which he was first
thereafter rehired, less intermediate earnings.
217-919-66--vol. 156-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Offer to Stanley Mason immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay suffered by reason of the discrimination against him
from the date of his discharge on June 16, 1961, to the date of his rein-
statement, less any intermediate earnings.
(e) Notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstate-
ment upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
(f) Offer to, and, upon request, bargain collectively with, Chauffeurs
Teamsters Local Union #526, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, especially
concerning the resumption of their night-shift operations, and, if no
agreement is reached with respect thereto, bargain collectively with
said Union concerning the effects of the discontinuance of said night-
shift operations on employees Donald Martin, Manuel Medeiros, Frank
Oliver, and Michael Creeden. Bargain further concerning the effects
of the subcontracting of their yardwork on August 10, 1964, on
employee Donald Martin.
(g) 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 determine the amounts of backpay due and
the rights or reinstatement of the above-named employees.
(h) Post at their operations in the town of Assonet, Massachusetts,
copies of the attached notice marked "Appendix." 10 Copies of said
notice, to be furnished by the Regional Director for Region 1, shall,
after being duly signed by the Respondents' representative, be posted
immediately upon receipt thereof, and be maintaind by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations not found herein.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
ASSONET TRUCKING COMPANY, INC., ETC.
APPENDIX
NOTICE TO ALL EMPLOYEES
357
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT discourage membership in Chauffeurs & Teamsters
Local Union #526, International Brotherhood of Teamsters,
Chauffers, Warehousemen and ITel pers of America, or in any other
labor organization of our employees, by discharging or discrimi-
nating against them in regard to their hire and tenure of
employment.
WE WILL NOT unilaterally subcontract or discontinue unit work,
change wage rates or seniority rules, or otherwise unilaterally
change the terms and conditions of employment of unit employees
without prior consultation and bargaining with the foregoing
labor organization concerning such decisions and the effects
thereof.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right of self-organiza-
tion, to form labor organizations, to join or assist the above-named
Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the
Act, or to refrain from any and all such activities, except as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer reinstatement to their former or equivalent jobs,
as available, to the following employees:
Jose C. Moniz Omer Tessier
John Camara Glen Simcock
Antone Costa Frederick Haskins
WE WILL create a preferential hiring list containing the names
of any employees aforenamed for whom there are not sufficient job
openings and as job openings occur we will offer reinstatement to
these employees to their former or substantially equivalent jobs.
WE ,WILL make whole employees Jose C. Moniz, John Camara,
Antone Costa, Omer Tessier, Glen Simcock, and Frederick Has-
kins, for any loss of pay suffered by reason of the discrimination
against them, from the date of their discharge of May 15, 1964,
to the date of the offer of reinstatement or until such earlier time
as each secures , or did secure , substantially equivalent employment
with another employer, less intermediate earnings.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole employees Donald Martin, Manuel Medei-
ros, Frank Oliver, and Michael Creeden for any loss of pay suf-
fered by them as a result of failure and refusal to bargain with the
aforenamed Union concerning the discontinuance of our night-
shift operations. WE WILL further make whole Michael Creeden
for any loss of pay he suffered as a result of our discriminatory
layoff of him in May 1964. WE WILL further make whole Donald
Martin for any loss of pay suffered by him as a result of our failure
and refusal to bargain with the aforenamed Union concerning
the effects of our subcontracting of yardwork in August 1964.
WE WILL offer Stanley Mason immediate and full reinstatement
to his former or substantially equivalent position, without prej-
udice to any seniority or other rights previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimina-
tion against him.
WE WILL offer to, and upon request, bargain collectively with,
the aforenamed Union, especially concerning the resumption of
our night-shift operations, and if no agreement is reached with
respect thereto, bargain collectively with said Union concerning
the effects of the discontinuance of said night-shift operations on
employees Donald Martin, Manuel Medeiros, Frank Oliver, and
Michael Creeden, and the effects of the subcontracting of our yard-
work on employee Donald Martin.
ASSONET TRUCKING COMPANY, INC.; ASSONETT
SAND & GRAVEL COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any questions concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 24 School Street, Boston, Massachusetts, Telephone
No. 223-3358.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by Chauffeurs & Teamsters Local Union # 526, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
ASSONET TRUCKING COMPANY, INC., ETC. 359
herein called Teamsters or Union,1 against Assonet Trucking Company, Inc., herein
called Respondent Trucking , and Assonet Sand & Gravel Company, Inc ., herein
called Respondent Gravel, the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 1 (Boston, Massachusetts ), on October 23,
1964, issued a consolidated complaint and notice of hearing . The complaint sets
forth the specific respects in which it is alleged that the Respondents violated Sec-
tion 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as amended , herein
called the Act . The Respondents duly filed an answer to the consolidated complaint 2
in which they denied all unfair labor practices with which they were charged.
Pursuant to due notice , a hearing was held before Trial Examiner Robert E. Mullin
at Fall River, Massachusetts , on November 4, 5, and 6, 1964. All parties appeared
at the hearing and were given full opportunity to examine and cross -examine wit-
nesses, to introduce relevant evidence , to argue orally at the close of the hearing,
and to file briefs . The parties waived oral argument . After the hearing, the Respond-
ents and the General Counsel filed able and comprehensive briefs which have been
fully considered.3
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Respondent Gravel is a Massachusetts corporation with its principal office and
plant in the town of Assonet , Commonwealth of Massachusetts , where it is engaged
in the excavation , processing , and sale of sand, gravel , and related products . Respond-
ent Trucking , likewise a Massachusetts corporation , shares the office of Respondent
Gravel and is engaged in the sale and distribution of sand, gravel , and related prod-
ucts. According to Marvin Wilner, accountant for both firms who testified on behalf
of the Respondents , the two companies are commonly controlled , with the same own-
ers involved in the affairs of both. Further , according to this same witness, 99 per-
cent of the business transacted by Trucking is with Respondent Gravel and, in his
words, the former is a "captive company" of the latter.
Other testimony corroborated that of the Respondents' accountant . Warren Clark
and William Shepard, two brothers -in-law, are the dominant officers and directors of
both corporations . Their wives are directors in Respondent Trucking. The Respond-
ents have a common office where all their records and files are maintained and from
which all their business is transacted . One person , a Mrs. Budreau , an employee of
Gravel, prepares the payroll for both companies . Whereas the equipment operators
are carried on the personnel records of Gravel , truckdrivers are employed by both
companies . Sometimes the latter employees are interchanged from one company to
the other . According to Warren Clark, this is not uncommon . Finally, the Respond-
ents have purchased a common, centrally administered labor policy , and for several
years have had a joint collective -bargaining agreement with the Teamsters which was
executed on behalf of both Gravel and Trucking by Warren Clark.
On the foregoing facts, it is clear , and I find, that Gravel and Trucking constitute
a single, integrated employer. N .L.R.B. v. Stowe Spinning Company , et al., 336
U.S. 226, 227 ("Interlocking directorates and family ties make the four [respondent
mills] equal one for our purposes ."). Southport Petroleum Company v . N.L.R B.,
315 U .S. 100, 106 ; Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 14-16; N.L.R.B.
v. Concrete Haulers, Inc., and Wamix , Inc., 212 F. 2d 477, 479 (CA. 5) ("The
interdependence and integrated nature of the operations of the respondents, the com-
mon ownership of stock, and the fact that the same officer administers a common
labor policy , clearly indicate that there is only one employer for the purposes of this
i The original charge in Case No. 1-CA-4653 was filed on June 25, 1964 ; on July 7
the Union filed an amended charge; on July 17 a second amended charge ; and on Sep-
tember 4, 1964 , a third amended charge. A complaint on these charges was issued on
September 8, 1964 The charge in Case No 1-CA-4750 was filed on September 30, 1964.
2 On September 17, 1964, the Respondents had filed an answer to the original complaint
in Case No . 1-CA-4653.
3 Subsequent to the hearing the General Counsel filed a motion to correct various
stenographic errors appearing in the transcript . All parties having been served with a
copy of the aforesaid motion and no objections having been registered , the motion is
granted and the record is hereby corrected in accordance therewith.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act."). Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Precon Trucking Corp., et al.), 139 NLRB 1077, 1079-
1080.
The Respondents denied that they were engaged in commerce within the meaning
of the Act. However, at the hearing they stipulated that during the period from
January to August 1964, the two corporations sold and delivered sand and gravel of
the following dollar value: $42,725 to the Gamino Construction Company in Ports-
mouth, Rhode Island; and $153,786 to the Perini Corporation and $38,000 to the
Swansea Construction Company, both of which are Massachusetts corporations
engaged in commerce within the meaning of the Act.4 In addition, Shepard testified
that late in 1963 and early in 1964 Respondent Trucking purchased $68,000 worth
of trucks from a dealer in Providence, Rhode Island. Finally, Wilner, accountant
and auditor for both firms, testified that for the fiscal year ending January 31, 1964,
She Respondent Gravel had a gross volume of $472,000 in business. In view of the
foregoing facts, I find that the Respondents are engaged in commerce within the
meaning of the Act. Sumner Sand & Gravel Company, 128 NLRB 1368, footnote 1.
Siemons Mailing Service, 122 NLRB 81.
II. THE LABOR ORGANIZATION INVOLVED
The Respondents concede and I find that the Union is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
In 1963 the Respondents and the Union entered into a collective -bargaining agree-
ment which by its terms was to be effective from May 1, 1963, until April 30, 1966.
The principal issues in the present case arose as a result of various action and con-
duct in which the Respondents engaged during the spring and summer of 1964. In
May and August of that year a number of the employees were laid off . During this
period the Respondents sold some of their trucks and trailers and entered into con-
tracts with other haulers to perform part of their trucking operations. On June 16
the Respondents dismissed Stanley Mason , the union steward, allegedly for exces-
sive absenteeism . In August the Respondents subcontracted part of their gravel yard
operation . In addition , at various times during this period , several wage increases
and reductions were effected The General Counsel contends that in none of the
foregoing instances was the Union notified in advance of the action taken, nor was
any effort made by the Respondents to negotiate with the bargaining agent as to the
changes which they contemplated or were about to effectuate It is contended by
the General Counsel that the Respondents' course of conduct violated Section 8
(a) (5) and, insofar , as it resulted in the layoff or dismissal of employees , of Section
8(a)(3) as well . This is denied by the Respondents who assert that all of the deci-
sions in question resulted solely from the exercise of business judgment and in no
way violated any section of the Act.
B. The facts
The gravel processing and trucking operations engaged in by the Respondents
were, in a substantial measure, dependent on favorable weather conditions. For
this reason, very few employees were kept on the payroll during the winter, most of
the work being performed during the period from March through November.
Respondent Gravel had several employees engaged in removing the overburden in
the gravel pit, scooping up the gravel and stone with a front-end loader, and trucking
this material to a point nearby where it was crushed, washed, screened, and processed
into various grades of gravel and stone for commercial use Thereafter, the finished
product was delivered to customers in vehicles operated by Respondent Trucking.
As noted earlier, quite frequently, employees of the latter drove trucks for the
Respondent Gravel's pit operation and vice versa. During the peak of their season
4 The parties stipulated that Perini does business outside the Commonwealth of Mas-
sachusetts in excess of $50,000 a year and that direct out-of-State purchases and sales
by Swansea likewise exceed that figure.
ASSONET TRUCKING COMPANY, INC., ETC. 361
when the regular truck fleet had to be supplemented to handle an increased volume
of business, the Respondents sometimes contracted with independent carriers to han-
dle the excess work.5
There was testimony that, during the middle or latter part of April, Clark told
several of the employees that if they continued to complain the Respondents would
sell their trucks. The incident in question arose on the night shift when several of
the employees were breaking stone, a laborious process which some of the drivers
apparently resented .6 Frank Oliver, operator of the crusher, reported the matter to
Warren Clark. According to John Camara, one of the truckdrivers, Clark thereupon
came to the employees who were engaged in the stonebreaking process and, among
other things, told them that "if the guys keep complaining and bitching that
he was going to sell the trucks." Omer Tessier, another employee on this shift,
testified that Clark told him that he (Tessier) had to help break the stone and con-
cluded with the declaration, "The Union ain't going to tell me what to do here .. .
I run this job and I'll shut it down. The union ain't going to tell me what to
do." Clark conceded that at the time in question he had a conversation with the
employees as to their complaint about having to assist in breaking stone. He testi-
fied that he could not recall having made any threats to the employees and denied
having declared that he would sell the trucks and put them out of work. He further
denied having used any vulgar or profane language during the course of this discus-
sion. On the other hand, it was plainly evident when Clark testified that the reluctance
of the employees to perform the manual labor in question had made him very indig-
nant . Whereas this reaction by the employer was understandable, it did not lend
credence to Clark's denial that at the time in question he told the employees that if
their complaints continued the Respondents would sell the trucks. Camara and Tes-
sier were, in general , credible witnesses, whereas Clark was not. For this reason,
their testimony as to this incident is found to be a substantially accurate account of
what occurred and what was said at the scene.
On May 5, 1964, the Respondents laid off Omer Tessier, Glen Simcock, and
Michael Creeden, all of whom were working on the night shift as truckdrivers. At
the hearing Clark testified that this layoff was necessitated by the need to reprocess
a large qauntity of material which a customer had rejected as substandard, and that
the night shift was selected because the Respondents had a verbal agreement with
the Union whereby the night-shift employees would accumulate no seniority. Shepard
also testified as to such an understanding with respect to the night shift. Anthony
Matena, business agent for the Union, and the one with whom this oral commit-
ment was alleged to have been reached, denied that there had ever been any such
agreement . Moreover, there was a specific provision on seniority in the current
collective-bargaining contract which made no distinction between night and day
shifts, thus tending to disprove the existence of any oral understanding to the con-
trary. Of equal significance as to the credibility of Shepard and Clark in this con-
nection was the fact that during the very week that Tessier, Simcock, and Creeden
were laid off, allegedly for lack of work, the Respondents hired three new truck-
drivers; namely, Louis Texeira, Manuel Moniz, Jr., and Albert Amy. In the light
of these considerations, the testimony of Respondents' officials as to the existence
of an oral agreement with the Union which deprived the night shift of any seniority
rights is found to be lacking in credence.
On May 8, Materia called on Clark and Shepard to protest that in laying off the
three members of the night shift the Respondents had violated the employees' se-
niority rights. According to Materia, Shepard thereupon asserted that, in contrast
with certain day-shift employees who had been retained, none of the three in ques-
tion were qualified to drive trailer trucks so that the Respondents had no further
need for them. Later in the conference, however, and after Materia had argued that
Tessier, Simcock, and Creeden were qualified to drive any type of vehicle in the
Respondents' yard, Shepard became incensed, declared that he was not going to let
6A provision in article XIII of the collective-bargaining agreement recognized this
practice with a paragraph which read' "When hired trucks are required they shall be
manned, by members of the Chauffeurs & Teamsters Local $526, who have signed agree-
ment with Local 526 "
6 Occasionally during the screening and crushing phases , large stones were uncovered
which would not go through the processing equipment. At that point the operator shut
down the machinery and any drivers present were expected to assist in crushing the over-
sized rocks with sledge hammers.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union dictate to him, and stated that the Respondents had found a purchaser to
whom they could sell their trucks. Materia testified that at this point he urged
Shepard to calm down and thereafter the latter concluded the conversation by prom-
ising the business agent that he would have an answer for him in a few days. On
direct examination, Shepard denied that at any time during this conversation had he
threatened that the Respondents might sell their trucks. On cross-examination, how-
ever, he conceded that there could have been some mention of that prospect. Clark,
in contrast, conceded that during this meeting he told Materia that they had located
a buyer for their trucking equipment. Thereafter, according to Clark, Materia
expressed no opposition to such a move and merely observed that the matter was a
subject of indifference to the Union. The testimony as to this last remark which
Clark attributed to Materia, however, was most unconvincing and I accord it no
credence.
Early the following week, the Respondent Gravel notified the Union that it was
offering immediate reemployment to Tessier, Simcock, and Creeden. On May 15,
however, and only a few days later, the Respondents laid off these same three employ-
ees, as well as four others,7 on the ground that Respondent Trucking had just sold
six trucks, three to an independent contract carrier named Rezendes and three others
to another carrier named Simmons. Immediately thereafter, and with these same
trucks, Rezendes and Simmons began hauling sand and gravel for the Respondents.
On May 16, Materia learned of the layoff from some of the affected employees.
He immediately telephoned Clark to protest the failure to notify the Union and to
request that the Respondents send him an up-to-date seniority list so that the bar-
gaining agent could check on the seniority of those who had been retained as against
those laid off. On May 18, Shepard addressed a letter to Materia in which he
referred to the Respondents' sale of six trucks on May 15, named the seven employees
who had been laid off, and included a seniority list of all the employees. Immedi-
ately upon his receipt of this letter, Materia telephoned Shepard and Clark to protest
the layoff on the ground that even on the basis of the seniority list submitted in the
correspondence, the seven employees laid off were senior to one Frank Oliver who
had been retained. Materia testified that he told the Respondents' officials that he
considered any sale to Rezendes and Simmons a subterfuge to avoid their obligations
under the collective-bargaining agreement since both of them were nonunion car-
riers and further because, on May 1, the Respondents had become liable, pursuant
to their contract with the Teamsters, for paying 13 cents an hour per employee into
the union health and welfare fund. According to Materia, he told Shepard and
Clark 8 that he felt the Union had a grievance and that he would be willing to arbi-
trate the matter, but that first he wanted a meeting to discuss their differences and be
offered proof that there was an actual sale involved. The Respondents' officials were
noncommittal and no date was set for any such meeting. Materia's testimony as to
his conversation with Clark and Shepard was credible and was undenied by either of
the latter, both of whom appeared and testified. Materia's account of this exchange
on the telephone is, therefore, credited by me
Early in 1963 the Union had a shop steward named Milton Halliwell at the
Respondents' plant and yard. In May of that year, as the result of employee dis-
satisfaction with Halliwell, the Union removed him and did not appoint a successor.
On May 17, 1964, however, and after learning of the layoff that weekend, Materia
sent a telegram to the Respondents advising them that the Union had appointed
Stanley Mason, one of the truckdrivers, to act as steward thereafter 9 Clark and
Shepard immediately dispatched a telegram to Materia in which they stated that they
would not acquiesce in Mason's appointment and would accept as a shop steward
only one who had been elected by the employees themselves. Donald Martin, one
of the drivers, testified that on or about May 18, the union telegram on Mason's
appointment was posted on the employee bulletin board. According to Martin, that
same morning both Shepard and Clark spoke to the employees about the union
announcement and expressed their disagreement with the procedure Materia had
followed. Martin testified that Clark then told all the employees present that he did
not feel that the Union should appoint the steward but that the men themselves
7 These four , in addition to Tessier , Simeock , and Creeden were Jose C. Moniz, John
Camara, Antone Costa, and Frederick Haskins.
8 There was testimony that this was a three-way telephone conversation between the'
business agent and the Respondents ' officials.
8 On May 18 , Materia confirmed the appointment of Mason as shop steward with a
letter to the Respondents on the subject.
ASSONET TRUCKING COMPANY, INC., ETC. 363
should get together and hold their own election for the post. The following day, the
Respondents posted on the employee bulletin board a copy of their wire to the
Teamsters which protested Mason's appointment and proposed an election among
the men to designate a steward.10 Notwithstanding the Respondents' advice to the
employees as to the manner in which they should select their steward , the men them-
selves did not adopt the counsel offered. As a result, Mason remained as the Team-
sters' representative at the yard until his discharge approximately 1 month later on
June 16. The issues with respect to that termination will be dealt with more fully
hereinafter.
On May 19, Materia telephoned Shepard and stated that the Union had a griev-
ance over the manner in which the Respondents had sold the trucks and selected
employees for layoff. Shepard made no response at the time other than to say that
he would call Materia later. Sometime that afternoon the Respondents' officials
notified Materia that Attorney Waldron would be their representative in the matter.
On May 25, a meeting was held with the company attorney at which time Materia
and the union attorney, Levin, presented their position with respect to the sale of the
trucks and the seniority dispute as to the laid-off employees. In addition, the union
representatives endeavored to discuss certain other grievances which Mason, the
newly appointed steward, had biought to Materia's notice. Nothing further was
accomplished, other than for Waldron to raise anew the question of Mason's author-
ity to act as steward. As a result, following adjournment of the meeting, the Union
again notified the Respondents, in another letter, that Mason was the duly designated
steward for Local 526.
On June 8, the union representatives met with Waldron once more. In addition
to the issues as to the sale of the trucks and the layoff of the seven employees,
Materia told Respondents' counsel that Shop Steward Mason had reported several
other grievances which the Union wanted to discuss. These last involved employee
protests about overloading of the trucks, failure to get reporting pay, lack of work
for the regular drivers on days when drivers for the subcontractors had work, and
failure of the Respondents to give the laid-off employees their vacation and holiday
pay. The union representative proposed that, pursuant to article VIII of the
collective-bargaining agreement, the parties submit their differences to the Massa-
chusetts State Board of Arbitration and Conciliation. Attorney Waldron refused to
accept this proposal and would make no commitment as to any of the other matters
in dispute. The meeting thereupon adjourned. In a letter dated June 12, Attorney
Levin mailed to Waldron the forms for submitting the employer-union dispute to the
State Board of Arbitration and again requested that the forms be signed by his cli-
ents. According to Levin, his request was never answered.
On June 26 the Respondents sold two of their trailer trucks, one to Rezendes and
the other to Simons. Once again, no notice was given to the Union of such action
by the Employer.
On August 7, the Respondents subcontracted their yardwork and nightwork to the
Arruda Construction Company. Simultaneously, they laid off four more employees 11
Materia thereupon telephoned Shepard to question him as to what had happened and
to demand an explanation as to why the Union had not been notified prior to this
action. In his response , Shepard acknowledged that the work in question had been
sublet to Arruda. In explanation of his failure to keep the Union informed, Shepard
told Materia that he did not feel that such a step was necessary. Materia then told
him that the Union wanted to discuss the matter further and asked for a letter set-
ting forth the basis for the action which the Respondents had effected. On August 10,
10 Shepard testified that at the time Halliwell was removed almost a year earlier, the
union officials verbally agreed that the men would have a chance to vote on the selec-
tion of any new steward Materia vigorously denied that there had ever been such an
agreement . Most significantly , the collective-bargaining agreement , which was executed
in the spring of 1963 and was effective on May 1 of that year, provides in article IV
"The employer recognizes the right of the Union to designate job stewards and alternates."
Shepard 's testimony on the alleged oral understanding as to the manner of selecting a
steward was lacking in specificity and unconvincing Consequently , and in view of
Materia's denial of that testimony , as well as the plain language of the contract which
was executed either contemporaneously or even subsequent to the time about which
Shepard was testifying , it is my conclusion that there is no substance to Shepard's as-
sertion that the Respondents had an oral understanding with the Union which was in
conflict with the clear terms of article IV of their written contract
11 These were Donald Martin, Manuel Medeiros, Frank Oliver, and Michael Creeden.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shepard sent the Union a letter which listed the names of the four employees in ques-
tion and stated they had been laid off for lack of work when the night shift was dis-
continued. On August 20, Attorney Levin wrote to Waldron to request a conference
on the subject of these layoffs. When no response to this letter was forthcoming, on
August 26, Levin again wrote to Waldron, this time to request that the Respondents
join the Union in referring their dispute to the Massachusetts Board of Arbitration
and Conciliation. Enclosed within this letter was the necessary application for such
a submission, bearing the signature of Materia as agent for the Union and needing
only the additional signature of a representative for the Respondents. According to
Levin, however, the Respondents never joined in the application for arbitration and
never designed to make any response to this correspondence. Thereafter, and up to
the time of the instant hearing, there was no further communication between the
parties.
C. The alleged violations of Section 8(a) (5) and (1) of the Act:
findings and conclusions with respect thereto
1. The appropriate unit
The General Counsel alleged, the Respondents conceded, and I find that all truck-
drivers, loader-operators, plant operators, and mechanics of the Respondents, exclud-
ing office clericals, professional employees, watchmen, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purpose of collecting bar-
gaining within the meaning of Section 9(b) of the Act.
The General Counsel alleged, and the Respondents conceded, that in or about
1960, a majority of the employees of the Gravel and Trucking Companies in the
above-described unit selected the Union as their bargaining agent. In 1963 the
parties executed a collective-bargaining agreement to cover the employees in the
aforementioned unit, to be effective from May 1, 1963, until April 30, 1966. This
agreement was in force at all times material herein.
Under the circumstances present here, the parties being in agreement as to the
appropriateness of the unit and there being no dispute as to the status of the Union
as the majority representative of the employees in such unit, I find that by virtue of
Section 9(a) of the Act, the Union has been, and is now, the exclusive representative
of all employees in the aforesaid unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, and other terms and conditions
of employment.
2. The alleged refusal to bargain
The General Counsel contends that the Respondents violated Section 8(a)(5) and
(1) of the Act by refusing to discuss with the Union the decision to sell the trucks
and tractor-trailers and the decision to subcontract the work of employees in the
unit. This is denied by the Respondents, according to whom the decision to sell their
equipment was based solely on economic reasons and that, in any event, it was taken
only after discussion with the Union.
There was testimony that sometime early in 1964 the Respondents decided to dis-
pose of their gasoline-operated trucks and convert to diesel-powered equipment.
Accountant Wilner testified that he advised Clark and Shepard that for economy of
operations this step was imperative. This same witness also testified that because of
the tenuous financial position of the Respondents he advised these same officials that
the conversion should proceed slowly. As a result of this counsel, early in 1964 the
Respondents purchased three diesels and in the purchase traded two of their obsoles-
cent gasolme-driven trucks. For several months thereafter, however, except for a
few casual conversations with carrier operators in the Fall River area, nothing fur-
ther was done about disposing of the other gas-motored trucks James Sylvia, a
trucker in Taunton, Massachusetts, testified that in February or March, Clark tele-
phoned him to ask if he was interested in buying some equipment and that he replied
in the negative. Joseph Abreau, another trucker in Taunton, testified that in Janu-
ary or February both Clark and Shepard talked to him about their desire to sell six
or seven trucks, but that he never made an offer, or bid of any sort, because he was
not interested. George L. Braley, Jr., another truck operator in the area, testified
that on an occasion sometime in March he was at the Respondents' premises on
other business when one of the Respondents' officials (he could not recall whether
it was Clark or Shepard )introduced the subject of selling their trucks According
to Braley, however, the discussion "never went beyond the talking stage." There was
no evidence that the Respondents at any time during this period sought to advertise
this equipment for sale in newspapers, trade journals, or in any similar manner.
ASSONET TRUCKING COMPANY, INC., ETC. 365
Clark and Shepard testified that early in 1964 there was some discussion with
Materia as to their plans to sell the trucks. Shepard's testimony was to the effect
that on several occasions in February and March, he and Clark told Materia that
their accountant had advised them that they should liquidate the gasoline-powered
trucks. Clark testified that on one or two such occasions during this period, in gen-
eral conversations with Materia, he or Shepard mentioned that the Respondents were
considering selling their trucks. In each instance, according to Clark, Materia "lust
kind of passed it off that we wouldn't do anything like that, that we needed the trucks
for our business .... " 12
From the foregoing evidence it is manifest that the Respondents had taken no
concrete steps to sell their trucks during the months of January through March. In
the latter part of April, however, as found earlier herein, when some of the employees
on the night shift protested about having to help in breaking stone at the rock crusher,
Clark declared that the Union was not "going to tell me me what to do" and threat-
ened that if there were further incidents he would sell the trucks. Early in May the
night shift was laid off. On May 8, when Materia met with Shepard to protest the
layoff of these employees on the ground that their seniority had been ignored, Shep-
ard indignantly declared that he would not have the Union dictate to him and that
the Respondents had located a prospective purchaser for their trucks. Almost imme-
diately on May 15, the Respondents sold six trucks to Rezendes and Simmons, and
on June 26 they sold two tractor-trailers to the same purchasers. Clark and Shepard
conceded that there was no discussion with the Union as to either of these trans-
actions or the effect which the sales would have on the work of employees in the
bargaining unit. Shepard, in fact, testified that the Respondents did not feel under
any obligation to engage in such discussion with the Teamsters. Nevertheless, imme-
diately after the sale of this equipment to Rezendes and Simmons, these two carriers
began performing the same trucking operation for the Respondents which prior
thereto the Respondents' own employees in the bargaining unit had been doing.
Materia's testimony that both Rezendes and Simmons were nonunion carriers was
neither contradicted nor denied. It is also relevant to note that, pursuant to the
collective-bargaining agreement, on May 1, 1964, the Respondents had become liable
for substantial payments to the Teamsters' health and welfare fund at the rate of
13 cents per hour on all hours worked by employees in the bargaining unit. In view
of the foregoing findings, it is the conclusion of the Trial Examiner that the Respond-
ents' unilateral action in selling the trucks to Rezendes and Simmons and contracting
with the latter to perform the work of employees in the bargaining unit was motivated
by a desire to avoid their obligations under the collective-bargaining contract and to
ignore their responsibilities under the Act. This conduct by the Respondents was
totally lacking in any demonstration of good faith in satisfying the statutory require-
ment that they meet and consult with their employees' representative before laying
off any employees or otherwise changing the terms and conditions of employment.
J. 1. Case Company v. N.L.R.B., 253 F. 2d 149, 153 (C.A. 7). Under these circum-
stances, the termination of the seven employees on May 15, arising out of the
Respondents' failure to bargain in good faith, constituted a violation of both Section
8(a)(5) and 8(a)(3). N.L.R.B. v. Brown-Dunkin Company, Inc, 287 F. 2d 17,
19-20 (C.A. 10) ; M. Swack Iron and Steel Co.. 146 NLRB 1068.
Subsequent to the layoff of the employees in mid-May, the Union sought to meet
with the Respondents to discuss not only these terminations, but numerous other
grievances as well. When the Union failed to secure any adequate opportunity to
meet with the Respondents' officials, it offered to arbitrate its grievances, but this
offer was ignored. As noted earlier, on June 26 the Respondents sold two of their
tractor-trailers and on August 7 they laid off the night shift and subcontracted the
work to the Arruda Construction Company. At no time was the Union notified or
consulted regarding the sale, the terminations of the night shift in August, or the
subcontracting of work to Arruda. Thereafter, when representatives of the Union
protested this section, sought a meeting to discuss the matter, and offered to arbi-
trate all grievances, the Respondents ignored every proposal. Here, again, on the
basis of these findings and the totality of the evidence, it is my conclusion that by
subcontracting unit work to Arruda and thereupon laying off the four employees on
August 7, the Respondents further violated Section 8(a) (5), (3), and (1). Town &
i2 \iateria conceded that once or twice during this period the Respondents had men-
tioned that they were planning to trade some of their trucks
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Country Manufacturing Company, Inc, and Town & Country Sales Company, Inc,
136 NLRB 1022, enfd. 316 F. 2d 846 (C A. 5); Fibreboard Paper Products Corpo-
ration, 138 NLRB 550, enfd. 322 F. 2d 411 (C.A.D.C.), affd. 379 U.S. 203.13
3. Further unilaterial action by the Respondent
The General Counsel also contended, and the Respondents denied, that the Employ-
ers further violated Section 8(a)(5) and (1) by disregarding employee seniority in
the layoff and termination of several drivers and by unilateral action with respect to
wages.
The collective-bargaining agreement in effect between the parties required that the
Employers compile a seniority list and give preference with respect to work assign-
ments in accordance with that list On May 18, and in response to a demand from
the Union, Shepard sent to Materia a seniority list of the employees. From this list
alone it is clear that employees Creeden, Tessier, and Simcock had more seniority
than Frederick Haskins and Frank Oliver. Nevertheless, on May 5, the latter two
were retained while the other three were laid off. Moreover, at that very time,
three additional employees, Texiera, Moniz, and Almy, all of whom had been hired
only the week before, were kept on the payroll, notwithstanding the fact that at that
point they had only a few days' seniority. Earlier, it was found that there was no
plausibility to the Respondents' testimony that they had a verbal agreement with the
Union that night-shift employees such as Creeden, Tessier, and Simcock would not
accumulate seniority. A few days before May 15, the Respondents recalled the last
three named employees. Then, on the latter date, it discharged them along with four
others. Once, again, however, no dignity was accorded the seniority list, for John
Camara, one of those terminated at that time was senior to Frank Oliver, who was
then at the bottom of the list. The Respondents offered no explanation for their
selection of Camara for discharge over 0liver.14 This continuing, unilateral disregard
for the seniority list, notwithstanding the Respondents' contractual commitment and
their obligation to bargain with the Union as to any departures therefrom constituted
a violation of Section 8(a)(5) and (1).
It was undenied that four employees received wage increases in March and May,
and that in September the two of this group who still remained on the payroll had
their wages reduced. The General Counsel contends, and the Respondents deny. that
this action was taken unilaterally and in further derogation of the Respondents'
obligation to confer with the Union.
In March, Donald Martin, John Souza, Manuel Medeiros, and Frank Ferreira were
earning $2 36 per hour, the wage scale established by the collective-bargaining agree-
ment for three axle equipment drivers During the period from March 28 to May 2,
the Respondents gave each of these four employees a 29-cent-an-hour increase, which
raised their pay from the base of $2 36 an hour to $2.65. These increases were made
without any notice or consultation with the Union In September, and after the
filing of charges in Case No. 1-CA-4750 wherein it was alleged that the Respondents
had granted unilateral wage increases, Souza and Ferreira were notified that their
wages were being reduced to the original $2.36 per hour.'5 Again the Union received
no notice of this action as to the wages of Souza and Ferreira.
The Respondents contend that these increases were given the four employees
because of extra duties assigned them in connection with work on a contract for the
Perini Construction Company and, further, that the subject of the raises was, in fact,
13 In their brief the Respondents cite the Board decisions in Shell Oil Company, 149
NLRB 283, and Shell Chemical Company, a Division of Shell Oil Company, 149 NLRB
298, for the proposition that the subcontracting here involved did not constitute a viola-
tion of Section 8(a) (5). Neither of the aforesaid cases is applicable here In those
cases the Board found that the subcontracting was not violative, largely because, as it
stated in Shell Oil, the subcontracting was in accord "with established practice." While
it is true that at the peak of their busy season the Respondents in the past had hired
contract carriers to supplement their regular work force this had never resulted in the
layoff of any employees. Here, however, for the first time the Respondents discontinued
a portion of their operations and subcontracted with others to perform that same work
Consequently, it cannot be urged, on this record, that the action of the Respondents in
contracting unit work to Rezendes, Simmons, and Arruda was consistent "with estab-
lished practice."
14 There was undenled testimony in the record that Camara spent 50 percent of his time
performing the same duties as Oliver and often replaced Oliver.
15 As noted earlier, at this point martin and 1lfedeiros were no longer on the payroll,
having been terminated on August 7.
ASSONET TRUCKING COMPANY, INC ., ETC. 367
discussed with Materia . Shepard testified that at a meeting with Materia in mid-
March the business agent was told that certain of the personnel might get additional
pay. Clark testified that during this meeting the subject of additional pay for some of
the employees was discussed "very loosely ," 16 and that Materia declared that he was
glad that the men would be getting it. It was in this conversation , according to Clark,
that Materia was told that the night -shift employees would acquire no seniority over
the day shift . This portion of Clark 's testimony has already been found wanting in
credence . The testimony of both Clark and Shepard to the effect that there was some
discussion of the wage increases with Materia was equally lacking in persuasiveness.
Materia himself denied that at any time in the spring of 1964 had he ever had a
conversation with either Clark or Shepard on the subject of pay raises for certain
employees . In addition , Martin and Medeiros both testified that they were never
told that the raise was being given to them because of any additional duties or because
of work on the Perini job. Martin , in fact testified that in May his responsibilities
were actually decreased because he no longer was required to do repair work at the
plant. Neither Souza nor Ferriera , the other two employees involved, were called
as witnesses . Upon a consideration of the conflict between the testimony of the wit-
nesses on this issue , it is my conclusion that these wage increases were granted by the
Respondents with no prior discussion or notice to the Union and that in September the
wages of Souza and Ferreira were similarly reduced , again without reference to the
designated bargaining agent. By this conduct, the Respondents again violated Section
8(a)(5) and (1).
D. The discharge of Stanley Mason; contentions of the parties; findings and
conclusions with respect thereto
Mason was first employed by the Respondent as a truckdriver in May 1963. In
mid-May 1964 , when the Respondents Idid off several drivers, Mason , who at that
time was driving a tractor -trailer, was retained . As found above , on or about May 17,
Materia designated this employee as the shop steward for Local 526. When he
reported for work on Monday, May 18, Clark commented to Shepard , in the presence
of Mason, "What does Mason have to say for himself ?" Thereafter Clark observed, in
a voice loud enough for Mason to hear, that the only reason the latter had not been
laid off along with the others earlier that month was the fact that he had been driving
a tractor -trailer. The following day the Respondents sent the Union a telegram
objecting to Mason's appointment . That same day Clark manifested to the employees
his opposition to the Union 's action and suggested that they themselves should hold
their own election for designating a steward . Later, the Respondents posted on the
employee bulletin board a copy of their telegram to the Union protesting Mason's
selection.
As found earlier herein, subsequent to Mason's appointment , he brought to Materia's
attention a number of grievances with respect to conditions at the yard . One of these
involved the alleged overloading of trucks , in violation of the safety clause in the
collective -bargaining agreement . Mason reported this matter to the Union late in
May, and Materia , on behalf of the employees , thereupon contacted the Respondents'
officials. Mason testified that shortly thereafter , Clark stopped him as he reported to
the garage for some repair work , and demanded , "What the hell 's the idea of going to
the union hall and telling them that these trucks are overloaded . . . No
union is going to run my business and no shop steward is going to give me orders." 17
John Camara , another employee , testified that on or about June 1 he went to the
scale house and, as he entered , Clark was talking about Mason with Weighmaster
George Souza . According to Camara , the conversation stopped almost immediately
after he came into the scale house, but not until he heard Clark say that he would
"bounce Mason yet." 18 Mason was terminated on June 16 . Donald Martin, one
of the drivers , testified that on or about that same day he and the other employees had
gathered in the scale house waiting to start work when Shepard entered. According
to Martin, Shepard declared as he joined them that he "had just got rid of one prob-
lem, he had solved one of his problems that was Stanley Mason ... that no union
was going to run that place - as long as he was the boss . That he was still the boss
there." 19
16 The quotation is from Clark 's testimony.
17 This testimony was undenied. Clark subsequently testified but never contradicted
or denied these comments attributed to him by Mason
18 Camara 's testimony in this respect was undenied and uncontradicted.
10 Martin's testimony as to this conversation was undenied and uncontradicted
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel alleged that Mason was discriminatorily terminated for his
activities as a union steward This was denied by the Respondents, who averred that
Mason was dismissed for chronic absenteeism.
Mason was absent from work on Monday, June 15. His wife, Loretta Mason, tes-
tified that early on that day she telephoned the Respondents' office and, on contacting
Clark, told him that her husband would not be to work for a day or two According
to Mrs Mason, Clark concluded the conversation with the assurance that this would
be all right. Clark conceded that he had had a telephone conversation with Mrs.
Mason, as she testified, although, according to the Respondents' official, it was he, and
not Mrs. Mason, who initiated the call. Clark also conceded that it was not unusual
for Mrs. Mason to contact him in this manner and that she had done so on a number
of other occasions to tell him that her hubsand would be unable to report for work.
Shepard, on the other hand, testified that on noting Mason's absence on the morning
of June 15 he endeavored to contact Mrs. Mason by telephone but was unsuccessful.
Thereafter, according to Shepard, he telephoned Mason's mother to ask her assistance
in locating the employee, and later placed calls to various taverns in the area, all to no
avail in his search to discover Mason's whereabouts. Shepard testified that the next
morning he and Clark discussed the matter and concluded that Mason should be
discharged for being absent habitually.
Both Shepard and Clark testified that prior to Mason's dismissal, his absenteeism
had become a serious problem. Only the former, however, endeavored to give any
particulars as to Mason's alleged dereliction. Thus, Shepard listed 7 days between
March 6 and June 14, 1964, on which Mason was allegedly absent. According to
Shepard, these were all either Fridays or Mondays. Shepard's testimony as to the
particular days that Mason was supposedly absent was given while he referred to
notes which he had in his possession while on the stand. It was not further corrobo-
rated. Whereas this testimony might readily have been supported by the timecards in
the Respondents' possession, this was never done, notwithstanding a demand by the
General Counsel for their production. A subpoena duces tecum had been served on
the Respondents for such records and at the hearing the General Counsel requested
that he be allowed to inspect the timecards. At no time after they became critical to
this particular credibility issue, however, were they made available for such an exam-
ination.20 On the other hand, such documentary evidence as was available tended to
disprove Shepard's testimony that Mason was frequently absent. For example, certain
payroll records which were offered at the hearing disclosed that from March through
June, Mason was paid for working an average of more than 40 hours per week, thus
indicating a rather satisfactory attendance record.
Shepard conceded that he considered Mason a "very good" employee. 21 In an
effort to establish that Mason's function as a union steward never came to their
attention , both Shepard and Clark testified that throughout the period that Mason held
that post he never discussed any grievances with them. On the other hand, Materia
testified that on May 25, in a conference with Attorney Waldron at which he com-
plained about the Respondents' alleged overloading of their trucks and violating the
seniority provisions of the contract, Waldron questioned him as to the source of this
information. According to Materia, he told Respondents' counsel that these reports
had come to him from Mason, the shop steward. As found above, shortly thereafter,
Clark accosted Mason, profanely demanded why the employee had gone to the union
hall with a complaint that the trucks had been overloaded, and concluded the conver-
sation with the declaration that "no shop steward is going to give me orders." For
almost a year prior to Mason's appointment, the Respondents had had no union stew-
ard at the yard. Mason's appointment met with no enthusiasm from either Clark or
Shepard. Upon first being notified of Mason's designation they sought to ignore it
and have the men themselves elect someone else for the post. When that attempt
was unsuccessful the Union soon began to press for the settlement of grievances
which Mason had brought to its attention, and which the Respondents had to answer.
This brought forth the bitter comment from Clark that has been noted above. Not
long thereafter Clark was heard to predict that he would "bounce Mason yet." A
short time later, when the employee was finally terminated, Shepard summed up this
20 At one point , counsel for the Respondent stated that the timecards had been in the
hearing room on the preceding day. The General Counsel then requested that because
he still had never had an opportunity to examine them that they be returned to the
room. For reasons which the Respondents never explained , however, the timecards were
not thereafter brought to the hearing
21 The quotation is from Shepard ' s testimony.
ASSONET TRUCKING COMPANY, INC., ETC. 369
development with the statement that with the departure of Stanley Mason he "had
solved one of his problems ... [and] that no union was going to run that place as long
as he was the boss.
On the basis of the foregoing findings, and the numerous other discriminatory acts
and conduct in which Shepard and Clark engaged during this period, it is my conclu-
sion that, as Mrs. Mason testified, on the morning of June 15 it was she who telephoned
Clark to report that her husband would not be at work that day or the next and,
further, that at that point the Respondents' official assured her of his approval. Not-
withstanding this fact, very shortly thereafter that morning, Shepard started the inves-
tigation about which he testified , purportedly to locate Mason . At the hearing, Shep-
ard admitted that he had never done this with respect to any other employee. On
this record , therefore , we have a situation where, after one official of the Respondents
had assured Mason's wife that his absence would be excused, later that day, another
official began a determined search to ascertain Mason's whereabouts on the ground
that nothing had been heard from him or his family . At the conclusion of this inves-
tigation , if Shepard is to be credited , the Respondents decided that because of Mason's
absentee record he could no longer be tolerated . In view of the findings set forth
above, however, it is my conclusion that neither Clark nor Shepard were credible in
their testimony that the decision to dismiss Mason was due to his absenteeism
Instead, it is my conclusion that the reason offered by the Respondents was an after-
thought and that the real cause for Mason's termination was that his activity as shop
steward had proved very irritating to both Clark and Shepard, who, as found earlier
herein, had manifested a determination to avoid their obligation to consult and
bargain with the Union as the representative for their employees . By his discharge,
for this reason , the Respondents violated Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of the Respondents described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States , and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices , it will
be recommended that they be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Earlier herein it was found that the Respondents sold their trucks and tractor-
trailers on May 15 and June 26, 1964 , for discriminatory reasons. However, in his
brief, the General Counsel concedes that this equipment was sold to bona fide pur-
chasers not involved in the present proceeding . The General Counsel states that, for
this reason , he is not contending that the status quo ante be restored . Cf. Town &
Country Manufacturing Company, Inc., 136 NLRB 1022, 1030, enfd. 316 F. 2d 846
(C.A. 5). Under these circumstances , I will recommend that a bargaining , reinstate-
ment, and backpay remedy consistent with that established by the Board in Savoy
Laundry, Inc., 148 NLRB 38, be provided herein for all those employees found to
have been discriminatorily terminated on May 15 and August 7, 1964.22 On the
other hand , the termination of Stanley Mason on June 16, 1964, is not in the same
category as the mass layoffs in May and August . Since it has been found that he was
singled out for discriminatory discharge after having engaged in protected concerted
activity , the conventional reinstatement and backpay remedy will be recommended
as to him. Interest on all backpay provided herein shall be computed in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716.
Finally, since it has been found that the Respondents violated Section 8(a)(5) by
unilaterally disposing of their trucks and subcontracting part of their yard operation,
as well as unilaterally making other changes in wage rates and seniority , it will be
recommended that the Respondents be required to cease and desist from making uni-
lateral changes in the terms and conditions of employment without consulting the
employees ' designated bargaining agent.
210n May 15 , 1964, the Respondents terminated Jose C. Moniz, John Camara , Antone
Costa, Michael Creeden, Omer Tessier, Glen Simcock, and Frederick Haskins. Creeden
was subsequently recalled to work for a time, but on August 7 he was again terminated,
along with Donald Martin, Manuel Medeiros , and Frank Oliver.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act.
2. All truckdrivers, loader-operators, plant operators, and mechanics of the
Respondents, excluding office clericals, professional employees, watchmen, 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.
3. At all times since 1960 and continuing to date, the Union has been the exclusive
representative for the purpose of collective-bargaining within the meaning of Section
9(a) of the Act, of all the employees in the aforesaid appropriate unit.
4. By refusing, since March 28, 1964, to bargain collectively in good faith with
the Union as the exclusive representative of their employees in the aforesaid appro-
priate unit, by unilaterally changing existing wage rates and disregarding seniority
rules, by failing to notify, consult, or bargain with the Union with respect to changes
in wage rates and seniority rules, the discontinuance of a portion of their trucking
operation, the subcontracting of a portion of their yard operation and the layoff and
termination of employees, the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Stanley
Mason, Jose C. Moniz, John Camara, Antone Costa, Michael Creeden, Omer Tes-
sier, Glen Simcock, Frederick Haskins, Donald Martin, Manuel Medeiros, and Frank
Oliver, the Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
6. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Cone Mills Corporation and Textile Workers Union of America,
AFL-CIO. Case No. 11-CA-2334. December 27, 1965
DECISION AND ORDER
On October 13, 1965, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in certain
other alleged unfair labor practices and recommended dismissal of
these allegations of the complaint. Thereafter, only the Respondent
filed exceptions to the Trial Examiner's Decision, with a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
156 NLRB No. 38.