Becker & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1964

145 N.L.R.B. 1788 (N.L.R.B. 1964)

1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act , except to the extent that union membership may be re-
quired as a condition of employment as exercised in Section 8(a) (3) of the Act.
BAY COUNTIES DISTRICT COUNCIL OF CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
SHINGLERS UNION, LOCAL 478, INTERNATIONAL
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
Employees may communicate directly with the Board 's Regional Office, 830
Market Street, Room 703, San Francisco, California, Telephone No. Yukon 6-3500,
Extension 3191, if they have any question concerning this notice or compliance with
its provisions.
Becker & Sons, Inc. and Teamsters Union Local 795, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case No. 17-CA-
2173. February 14, 1961
o..
DECISION AND ORDER
On November 4, 1963, Trial Examiner Owsley Nose issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Decision. He
also found that allegations of other unfair labor practices set forth
in the complaint had not been sustained. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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, the exceptions and brief, and the entire
record in this case, and hereby adopts the findings,i conclusions, and
recommendations of the Trial Examiner only insofar as they are
consistent with the following:
I In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
findings that the allegations of the complaint relating to the Respondent's alleged sur-
veillance and creating the impression of surveillance , and with respect to the discharge
of Kenneth Esicks, have not been sustained
145 NLRB No. 169.
BECKER & SONS, INC. 1789
The Trial Examiner found that the Respondent's dispatcher, Hot-
zel, whom he found to be a supervisor, said, in the presence of two
employees, that if the Union succeeded in organizing the Re-
spondent's plant, drivers would be laid off during the slack winter
season. The Trial Examiner concluded that by such threat the Re-
spondent interfered with, restrained, and coerced employees in viola-
tion of Section 8 (a) (1) of the Act. In its exceptions, the Respondent
contends the complaint should be dismissed on the ground either
that Hotzel was not a supervisor or that any violation was isolated.
We agree that the complaint should be dismissed. As the only viola-
tion found consisted of a single remark made by an individual whose
status is, in any event, doubtful and is, at most, that of minor super-
visor, we find that, under all the circumstances, it would not serve
any useful purpose to issue a remedial order.2 We shall, therefore,
dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
2 The Great Atlantic d Pacific Tea Company, Inc., 129 NLRB 757, and cases cited in
footnote 7 thereof.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the Charging Party on April 29, 1963, the General Counsel
on June 28, 1963, issued a complaint alleging that the Respondent had discharged
Kenneth Esicks in violation of Section 8(a)(3) of the Act, and by this and other
conduct had interfered with, restrained, and coerced its employees, in violation of
Section 8(a) (1) of the Act. The Respondent filed an answer denying the com-
mission of any unfair labor practices. The case was heard before Trial Examiner
Owsley Vose at El Dorado, Kansas, on September 19, 1963. All parties were repre-
sented at the hearing and were afforded a full opportunity to be heard, to examine
and cross-examine witnesses, and to present oral argument. Briefs submitted by the
General Counsel and the Respondent have been duly considered.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE RESPONDENT 'S BUSINESS
The Respondent , a corporation , is engaged as a common and private carrier in
transporting petroleum products, asphalt, and liquid fertilizer , and in the wholesale
and retail sale of such products . The Respondent has its principal place of business
at Emporia , Kansas, and operates terminals at Emporia and at El Dorado, Kansas.
In the course of its operations , the Respondent annually purchases from suppliers,
who are themselves engaged in interstate commerce , more than $50,000 worth of
goods and products originating outside of Kansas. Upon these facts I find as the
Respondent admits, that it is engaged in commerce within the meaning of the Act,
and that it is appropriate for the Board to assert jurisdiction.
II THE LABOR ORGANIZATION INVOLVED
Teamsters Union Local 795, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Supervisory status of Sumner and Hotzel
The complaint, which attributes unfair labor practices in violation of Section
8 (a) (1) of the Act to Lee Sumner and Jerry Hotzel, alleges that Sumner, who is
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described as Emporia terminal office manager, and Hotzel, who is described as
El Dorado terminal office manager and dispatcher, are supervisors within the mean-
ing of Section 2(11) of the Act. The Respondent's answer denies these allegations
of the complaint. It is appropriate, therefore, to resolve this issue at the outset.
By his own admission, Sumner is the assistant secretary-treasurer of the Re-
spondent. Sumner, on behalf of the Respondent, signed the 1962 corporation an-
nual report required by Kansas law to be furnished each year to the secretary of
state of Kansas. This report, which is to be signed by either the president or vice
president of the corporation and by the secretary or general manager , was signed
by Sumner as the general manager of the Respondent corporation. On these facts I
conclude that Sumner is a supervisor within the meaning of Section 2(11) of the Act.
Hotzel is second in authority at the El Dorado terminal . Frank J. Becker, the
Respondent's secretary and treasurer, is the general manager of the El Dorado ter-
minal, at which 18 drivers and shopmen were employed. Becker spends between
33 and 40 percent of his time away from the terminal. During the day Hotzel re-
ceives orders from customers for fluids to be delivered, decides the time, the size
of the truck, and the driver to be utilized, and every evening issues the assignments
of the drivers and the trucks to the respective loads. As indicated above, Hotzel
dispatches drivers from the Emporia terminal as well as the El Dorado terminal.
In connection with his dispatching duties, Hotzel issues transport load orders au-
thorizing the drivers to pick up the desired products at the refineries and dispatch slips
to the drivers themselves. Hotzel is also responsible for purchasing the necessary
office supplies for both the El Dorado and Emporia terminals . In addition to these
duties, Hotzel customarily interviews applicants for employment and gives his opin-
ions to Becker who considers Hotzel's views in making the final decision regarding
the hiring of an applicant.
While the Respondent contends that Hotzel makes only routine decisions and con-
sults Frank J. Becker about all nonroutine matters, by two-way radio if necessary,
I conclude upon the facts above set forth that Hotzel is a supervisor within the mean-
ing of Section 2(11) of the Act.
B. The Union's organizing efforts at the Respondent's terminals
The Union initiated efforts to organize the Respondent's employees about Febru-
ary 1, 1963. On March 8, the Union filed with the Board a petition for certification
as the bargaining representative for certain of the Respondent's employees at the
Emporia and El Dorado terminals. Meetings of employees were held, commencing
with one held shortly before March 29 at the El Dorado Hotel. A hearing upon
the Union's petition for certification was held on April 10, 1963. At the hearing
the Respondent and the Union entered into a stipulation for certification upon con-
sent election , pursuant to which an election was held at both terminals on April 27,
1963.
C. The alleged surveillance and creating the impression of surveillance
David Watson testified that on March 29, 1963, he overheard the "tail -end" of a
conversation between Lee Sumner , the assistant secretary -treasurer of the Respond-
ent, and Jerry Hotzel , the dispatcher for both of the Respondent 's terminals. Ac-
cording to Watson , the two men were in the dispatcher 's office and he heard "Lee
Sumner ask Jerry Hotzel for a list of the names of the drivers who attended the
meeting." The first meeting of employees interested in the Union had been held
a few days earlier. Watson testified that he overheard this conversation while
standing in the drivers ' room near the open window which is immediately adjacent
to and looks into the dispatcher 's office.
Both Sumner and Hotzel denied that any such conversation occurred . It is un-
necessary for me to resolve the conflicting testimony for it is immaterial, in the
view of the incident which I take, whether any such conversation took place. My
reasons for reaching this conclusion , briefly stated , are as follows : The conversation,
if it in fact occurred , took place between persons having supervisory status under
circumstances which make it unreasonable to infer that Sumner's alleged question
of Hotzel about the list of drivers who had attended the meeting was intended
to be heard by nonsupervisory employees . Assuming that such a list existed, there
is no showing that it was unlawfully obtained . In these circumstances, in my
opinion, such a question put by one supervisor to another would not violate the
Act.
D. The alleged threat of reprisal
David Watson testified that about April 23 Dispatcher Hotzel joined him and
another employee, Ernest James, as they were. sitting in a booth in the restaurant at a
truck stop and service station owned by the Respondent near the El Dorado terminal.
BECKER & SONS, INC. 1791
Hotzel stated in the course of a discussion about the slack winter season, according
to Watson, "that if the Union came in that there would be some changes made
probably that [he] would not like." Orville Frank's testimony corroborates that
of Watson. Thus he stated that as he was sitting with his back to Hotzel in an ad-
joining booth in the restaurant on this occasion he heard Hotzel say, "if the Union
came in there was something going to happen that the drivers would not like,
that in the wintertime there would be a bunch laid off that had been kept on in the
past."
Hotzel testified that he recalled the occasion in April in which he talked with
Watson and James in the restaurant. Hotzel denied saying anything to the effect
that if the Union were voted in there would be less employees working the follow-
ing winter. Hotzel went on to say that it was "one of [his] rules" not to discuss
such matters with others. Hotzel further testified that to the best of his knowledge
there was no one sitting in the booth behind him during the conversation in
question. Ernest James testified that he remembered the April incident in the
restaurant and that he did not hear Hotzel say anything about the Union while he
was there. James admitted, however, that when he left the restaurant that day
Hotzel and Watson were still talking. James further testified that during his con-
versation with Watson before Hotzel joined the two of them he had expressed the
opinion that the Respondent went to considerable expense keeping drivers on the
payroll during the slack winter season and that if the Union came in and gave the
Respondent "a bad time," the Respondent would no longer continue its practice of
furnishing work for the drivers during the winter.
Hotzel in his testimony about his duties at the terminal appeared eager to slant
his testimony in favor of the Respondent's position that he did not have any re-
sponsible supervisory functions, although the facts, in my opinion, clearly establish
the contrary. Hotzel's testimony in this regard raises questions in my mind as to his
general reliability as a witness. On the other hand, Watson's testimony was in part
self-contradictory, as the Respondent points out in its brief. In contrast, however,
is the testimony of Orville Franks who impressed me as a sincere witness giving a
true account of his recollection of the overheard conversation between Hotzel
and Watson. Franks, whose testimony was unshaken on cross-examination, testi-
fied positively and emphatically that he heard Hotzel state to Watson on the oc-
casion in question that if the Union came in there would be fewer jobs for drivers
in the wintertime.' Weighing the conflicting testimony, I find, in accordance with
the testimony of Franks and Watson, that Dispatcher Hotzel threatened that if the
Union succeeded in organizing the plant, drivers would be laid off during the
winter season. Such a threat clearly constituted interference, restraint, and coercion
in violation of Section 8 (a) (1) of the Act. -
E. The alleged discriminatory discharge of Kenneth Esicks
Esicks was hired by the Respondent in May 1962 as a truckdriver at the El
Dorado terminal. Esicks attended all of the meetings of the Union and discussed
the Union with other employees. It does not appear, however, that these dis-
cussions came to the attention of the terminal officials. Esicks was not outstandingly
active in the Union. As he testified, some employees were more active and others
were less so.
Esicks was 1 of 14 union supporters who attended the representation hearing on
April 10 Esicks did not testify at the hearing, however. Both Frank X. Becker,
the president of the Respondent, and Frank J. Becker, the general manager of the
El Dorado terminal, also attended the hearing. Frank J. Becker testified that he
noticed that some of his employees were attending the hearing, but that he could
not swear one way or another whether he observed Esicks among them.
On April 20, Esicks was dispatched to make a delivery of gasoline and diesel
fuel from the Skelly refinery to the truck stop and service station owned by the
Respondent. After emptying one compartment of his truck of regular gasoline
into the tank at the station, Esicks discovered that he had unloaded it into a tank of
diesel fuel. Esicks promptly reported his error to Lee Mitchell who operated the
service station.
Frank J. Becker was informed of the mistake and he had the diesel tank at the
service station drained and a new supply of clean diesel fuel placed in the tank.
Upon investigating the matter, Becker ascertained that 1,225 gallons of regular
gasoline had been dumped into about 1,366 gallons of diesel fuel. There is no
1 Since James was not present during the entire conversation between Hotzel and
Watson, his testimony that Hotzel made no mention of the Union while lie was present is
of little assistance in resolving the conflicts in the testimony.
1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute over the fact that as a consequence of Eskick's error almost 2,600 gallons
of fuel were rendered unusable for any purpose other than the sale back to the re-
finery as slop, for which the Respondent could recover 3 to 31/2 cents a gallon.
The fuel that was rendered unusable was worth about $500.
Becker summoned Esicks to his office and told him that he could not tolerate this
type of mistake and that he was discharged. Esicks asked Becker if he would not
reconsider, and inquired whether be had not generally given good service to the
Company. Becker agreed that he had taken good care of the equipment, as far as
washing, greasing, and servicing were involved. However, Becker added that Esicks'
mistake was so serious that it could not be overlooked, and that since he did not
want to be reminded in the future that he had tolerated such a serious mistake on
Esicks' part in the past, he had no alternative other than to discharge Esicks 2
In August, several months after Esicks' discharge. Frank Becker discharged
another employee, Earl Venters, for having dumped 785 gallons of ethyl gasoline
into 1,360 gallons of diesel fuel, a mistake very similar to that made by Esicks
The General Counsel points to various other instances' of mistakes by drivers
which had been overlooked by the Respondent on other occasions I have con-
sidered these instances and conclude that the only one which is in any way com-
parable to Esicks' in the degree of seriousness is the mistake of David Place who,
in June 1963, dumped 300 gallons of fuel oil into a customer's tank containing 1,700
gallons of asphalt, causing the Respondent about a $450 loss, less the value of the
mixture as slop. The Respondent urges that there were extenuating circumstances
in Place's case. It appears that it was Place's first week in hauling fuel oil, that the
delivery was being made to a construction project on which there were various
unmarked tanks, that he informed the customer's employee upon arrival that he
was loaded with fuel oil, and that it was the customer's employee who actually
unloaded the fuel oil into the wrong tank. The error was nevertheless partly
Place's fault because under the Respondent's rules, its drivers are the only ones who
are permitted to unload the Respondent's trucks. On this occasion Dispatcher Hotzel
told Place that he would be discharged if he ever made such a mistake again Under
all the circumstances I cannot agree with the General Counsel's contention that the
Respondent's failure to discharge Place because of his mistake indicates that Esicks
was treated discriminatorily.
While it is true that the discharge occurred only a week before the election and
that on one occasion, 3 days after Esicks' discharge, Dispatcher Hotzel threatened
employees with layoffs if the Union succeeded in organizing the plant, these facts
in my opinion are not enough, in view of all the other circumstances of the case, to
establish that Esicks' discharge was motivated by antiunion considerations
There is no evidence that General Manager Frank J Becker, who actually dis-
charged Esicks without consulting anyone else about the matter, had ever indicated
any hostility to the Union. Becker discharged Esicks immediately upon being in-
formed of the seriousness and the costliness to the Respondent of Esicks' mistake
I can well believe that the manager of a business such as the Respondents'-with
all its possibilities of suffering economic loss through employee carelessness-would
find it necessary to adopt the policy of not tolerating even one mistake of the
magnitude of Esicks'.
Becker denied knowledge of Esicks' union activities. Esicks' activities in the
Union were just about the same as those of the other union supporters, 14 of whom
had attended the representation hearing. There was nothing about Esicks' activity
in the Union to single him out as a target for retaliatory action by the Respondent.
2 The foregoing account of the circumstances of Esicks' discharge is based largely on
the testimony of Frank J Becker Esicks' testimony, as I construe it, is sub,tantially in
accord There is one exception, however Esici:s testified that Becker infoi med him on
the occasion of his discharge that "if it had happened a couple of months befoie, he could
have overlooked it " While Becker does not specifically deny having made such a state-
ment to Esicks, Becker's account, which is more detailed than that of Esicks', omits any
reference to such a statement to Esicks I do not credit Esicks' testimony in this regard
Throughout his testimony Esicks appeared to he straining to give the greatest possible
suppoit to the General Counsel's case Until pressed in the course of cross-examination,
Esicks refused to admit that his conduct on the job had been previously called into question
by the Respondent And in the course of apparently attempting to show assistance to the
union attorney at the iepresentation hearing which was attended by the Beckers, Esicks
at first misstated the topic of his conversation with the union attorney on this occasion
I conclude under all the circumstances of the case that Esicks' testimony to the effect that
Becker old him at the time of his discharge that lie could have overlooked Esicks' mistake
if it had happened a couple of months sooner was but in embellishment on Esicks' part
and is not worthy of credit
BECKER & SONS, INC. 1793
While I find that Becker probably assumed, in view of the substantial percentage
of its El Dorado employees attending the representation hearing (14 out of 18
employees), that Esicks was a union supporter, I conclude that the evidence as a
whole does not establish that Esicks' discharge was motivated by hostility to the
Union 3 Accordingly, the Section 8(a) (3) allegations of the complaint will be
dismissed.
IV. CONCLUSIONS OF LAW
1. The Respondent, by threatening that employees would be laid off during the
slack winter season in the event the Union succeeded in organizing the plant, has
interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby engaging in an unfair labor practice
affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of
the Act.
2. The allegations of the complaint relating to the Respondent's alleged surveillance
and creating the impression of surveillance and with respect to the discharge of
Kenneth Esicks have not been sustained.
V. THE REMEDY
The Respondent argues that if only a single isolated violation is found in this
case, no remedial order should be entered. While it may be within my discretion in
this case to recommend withholding the normal remedy, in my opinion the Respond-
ent's violation of the Act is sufficiently serious to warrant entering the usual remedial
order. A threat of future layoff if the employees succeed in organizing the plant
constitutes a serious interference with the employees' freedom of choice regarding
union affiliation. Particularly where such a threat is uttered but 3 days before an
election it is not to be overlooked. Such a threat very possibly could have made
the difference between the Union's victory and defeat in the election, especially since
the election resulted in a tie vote, 13 for the Union and 13 against. Under all the
circumstances I find it appropriate to enter the conventional remedial order.
[Recommended Order omitted from publication.]
I would reach the same result in this case even were I to resolve adversely to the
Respondent's witnesses the conflicting testimony concerning Sumner's alleged request of
Hotzel "for a list of the names of the drivers who had attended the meeting."
O