Builders Distributors Sand and Gravel, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 347 (N.L.R.B. 1981)

BUILDERS DISTRIBUTORS SAND AND GRAVEL. INC.
Builders Distributors Sand and Gravel, Inc. and
Dennie Chartier and Tom Enlow. Cases 19-
CA-12121 and 19-CA-12577
July 29, 1981
DECISION AND ORDER
On December 29, 1980, Administrative Law
Judge Richard D. Taplitz issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Builders Dis-
tributors Sand and Gravel, Inc., Lynwood, Wash-
ington, its officers, agents, successors, and assigns,
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also excepts to the Administrative Law Judge's finding re-
garding jurisdiction. Respondent contends that although it admitted gross
sales in excess of $500,000 during the year immediately preceding the is-
suance of the complaint, at least 50,000 of which sales were to custom-
ers outside the State of Washington or to customers within the State of
Washington who were themselves engaged in interstate commerce, the
Board should not exercise jurisdiction because Respondent's business is
'purely local in character." This exception fails to recognize that "where
a party contests the Board's assertion of jurisdiction under its discretion-
ary standards, the issue must be timely raised." Pollack Electric Co.. Inc.,
214 NLRB 970, fn. 4 (1974). Here the Regional Director in his order
consolidating cases, consolidated complaint, and notice of hearing assert-
ed jurisdiction over Respondent. Respondent admitted jurisdiction, and
did not contest it at the pre-trial or trial stage of the hearing. Respondent
did not timely raise its exception to jurisdiction.
We conclude that Respondent may not at this time relitigate whether it
meets the discretionary standards. See also Prestige Hotels. Inc.. d/b/a
Marie Antoinette Hotel. 125 NLRB 207, 208-209 (1959). To the extent
that Respondent now contests the Board's statutory jurisdiction, we find
that, in light of its earlier admission of the complaint's factual allegations
regarding jurisdiction, its unsupported contention that the Board lacks
statutory jurisdiction is clearly without merit.
In Member Jenkins' view, because the asserted lawful reason for the
discharge of Chartier and Enlow was plainly pretextual, that is, specious
and fabricated, the Administrative Law Judge's reliance on Wright Line.
a Division of Wright Line. Inc., 251 NLRB 1083 (1980), is inappropriate
Where the defense is found to be pretextual, it is ipso facto rejected and
the burden of proof and sufficiency of rebuttal analysis of Wright Line
can add nothing.
257 NLRB No. 53
shall take the action set forth in the said recom-
mended Order. 2
2 Member Jenkins, in accordance with his dissent in Olrmpw .Modicua
Corporation, 250 NLRB 146 (1980). would award hackpa) due based on,
the formula set forth therein
DECISION
STATEMENT OF THE CASI-
RICHARD D. TAPLITZ, Administrative Law Judge:
This case was heard in Seattle, Washington, on August
28, 1980. The charge in Case 19-CA-12121 was filed on
February 20, 1980, by Dennis Chartier, an individual. A
complaint was issued thereon on April I, 1980. The
charge in Case 19-CA-12577 was filed on July 3, 1980,
by Thomas Enlow, an individual. An order consolidating
cases and consolidated complaint issued on August II1,
1980, alleging that Builders Distributors Sand and
Gravel, Inc., herein called Respondent, violated Section
8(a)(l) and (3) of the National Labor Relations Act, as
amended.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(l) of the
Act by coercively interrogating and threatening employ-
ees concerning union activity and by engaging in surveil-
lance of their union activity.
2. Whether Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Dennis Chartier and Tom
Enlow because of their union activity.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record' of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Washington corporation with an office
and place of business in Lynwood, Washington, is en-
gaged in the wholesale and retail sale of building supplies
and sand and gravel. During the year immediately pre-
ceding issuance of the complaint, Respondent had gross
sales of goods and services valued in excess of $500,000.
During the same period of time, Respondent sold and
shipped goods or provided services from its facilities
within Washington to customers outside Washington, or
sold and shipped goods or provided services for custom-
ers within Washington, which customers were them-
selves engaged in interstate commerce by means other
than indirect means of a total value in excess of $50,000.
The complaint alleges, the answer admits, and I find that
i The joint motion of the General Counsel and Respondent to correct
the transcript of the record is hereby granted
347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The answer admits and I find that Teamsters Union
Local 38, affiliated with International Brotherhood of
Teamsters, 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. Background and 8(a)(l) Allegations
1. Factual findings
Respondent buys sand and gravel from other compa-
nies and resells and delivers it to its own customers. In
addition, it rents out some of its trucks. Respondent op-
erates about 17 trucks and employs about that number of
drivers.
In September 1979 employee Dennis Chartier contact-
ed the Union about organizing Respondent's facility. 2
However, after speaking to a number of the other driv-
ers, he decided to take no immediate action. In Decem-
ber 1979 a number of the employees once again began
talking about the Union. In early February 1980 Dennis
Chartier and Thomas Enlow spoke to Union Business
Representative Bob Schultz, and a meeting was sched-
uled for 8 p.m. on February 12, 1980, at Chartier's apart-
ment. Chartier discussed the upcoming meeting with a
number of employees.
About 4 p.m. on February 12, 1980, Chartier was dis-
charged by Respondent's president, Jerry Morey. 3 The
circumstances of that discharge are discussed in detail
below.
When Chartier left Morey's office on February 12, he
went into the company yard where he spoke to Enlow.
He told Enlow that Morey had let him go because of his
union dealings. Enlow replied that he would talk to the
drivers and see if they still wanted to have the meeting.
He spoke to some of the drivers and was told by them
that they had heard that if they went to the union meet-
ing they would be fired.
Later that day Enlow went into the company office to
leave some paperwork and to sign out. Other employees,
including Noel Graham and Bob Mullins, were also
there. Company President Morey told the employees
that there was supposed to be a union meeting that night
and that if anyone went that person was going to be
"down the road."4 Morey specifically asked Enlow
whether Enlow was going to be at the meeting, and
Enlow replied that he was not.5
2 Years ago the Union had represented Respondent's employees. but
for many years before the incidents in this case Respondent had been op-
erating nonunion.
' Respondent admits and I find that Morey is a supervisor within the
meaning of the Act.
4 "Down the road" is an expression frequently used in the industry to
indicate discharge.
' These findings are based on the testimony of Enlow Morey denied
that he talked to anyone about the Union. There were a number of incon-
sistencies between Morey's testimony at the hearing and an affidavit he
had previously given to the General Counsel. With regard to interroga-
At or about 5:30 or 6 p.m. on February 12 employee
Robert Miller returned to the yard with his truck and
took his paperwork into the dispatch office where he had
a conversation with Morey. In the course of discussing
the truck that was to be assigned to Miller the following
day, Morey mentioned that Chartier had been laid off.
Miller asked why, and Morey replied that it was because
of a lack of work. When Miller smiled, Morey asked
Miller if he knew anything about Chartier's organizing a
meeting. Miller replied that he did not know anything
about it. 6
Enlow went to Chartier's house at or about 8 p.m. on
February 12 to attend the meeting. Other than Chartier
no one else was there. While they were in Chartier's
apartment, Chartier and Enlow saw Morey's car outside
the apartment house. Morey acknowledged in his testi-
mony that he and Respondent's general manager, Rich-
ard MacDonald,7 drove to Chartier's apartment house
after they learned that there was to be a union meeting
at that location. He also testified that he drove to Char-
tier's house because he wanted to know which employ-
ees were going to attend the meeting.
At or about 8:15 p.m. on the same night MacDonald
called employee Noel Graham on the telephone. Mac-
Donald asked Graham whether Graham was going to
attend the union meeting, and Graham replied that he
was not. MacDonald then asked Graham who was going
to attend the meeting and said that all of those who did
attend were going to be laid off. He also said that he and
Morey had cruised by Chartier's apartment to see who
was attending the meeting. MacDonald told Graham that
he was calling around to see who was at home and who
was going to attend the meeting. In addition, MacDon-
ald said that if the employees tried to bring in the Union
they would be laid off, that they would lose all their
time, and that the Company would close down before
going union.8
When no one else appeared at the meeting, Enlow and
Chartier called Union Business Representative Schultz,
who told them that there were not enough people to
have a meeting and that the meeting was therefore can-
celed.
On February 13 Enlow had a conversation with
Morey in Morey's office. Morey said that five drivers
had told him that Enlow had organized a union meeting.
tion he testified that he did not ask anyone about the Union. However, in
the affidavit he averred that he might have asked an employee what was
going on with the union meeting. In his testimony at the hearing he
averred that he did not remember telling anyone in particular that he
would sell his business. In the affidavit he averred. "I have also said that
I would sell my business rather than have a union come in and tell me
how to run it." When questioned about the discrepancy between his testi-
mony and the affidavit, Morey was extremely evasive and his demeanor
did not inspire confidence in his veracity. I credit Enlow over Morey
6 These findings are based on the testimony of Miller. Morey testified
that he never interrogated any employee about union activities. I credit
Miller over Morey.
? Respondent admits and I find that MacDonald was a supervisor
within the meaning of the Act.
' These findings are based on the testimony of Graham. MacDonald in
his testimony denied asking Graham whether Graham was going to the
meeting and also denied that he ever interrogated an employee about that
employee's union organizational activity. Between Graham and MacDon-
ald I credit Graham.
348
BUILDERS DISTRIBUTORS SAND AND GRAVEL, INC.
Enlow asked who the drivers were and Morey did not
reply. Enlow denied that he had organized the meeting.
Morey then said that he was going to talk to the same
drivers again and that if they gave him the same story
Enlow was going to be down the road. Enlow again
denied that he was involved with the Union.9
Later that day Enlow felt badly about lying to Morey
concerning his union activity. He sought Morey out and
told him that he had tried to organize the men but only
to go to a meeting so that they could vote for them-
selves. Morey said that he would think it over and that
he would decide later.
On or about February 14 or 15 Miller spoke to Morey
in Morey's office. Morey asked Miller what made Char-
tier want to go union. Miller replied that he had no idea.
Morey then said that he could sell his trucks and equip-
ment and retire and that he would do so before he would
go union. '"
2. Analysis and conclusions
On February 12, 1980, Company President Morey in-
terrogated employee Enlow as to whether Enlow was
going to a union meeting. During the same conversation,
Morey threatened to fire Enlow and other employees if
they attended the union meeting.
On February 12 Morey interrogated employee Miller
concerning what Miller knew about employee Chartier's
organizing activity.
On February 12, General Manager MacDonald inter-
rogated employee Graham concerning whether he or
other employees were going to attend a union meeting.
During that same conversation, MacDonald threatened
to lay off employees who tried to bring a union in and
threatened that the Company would close before it went
union.
On February 13, Morey told employee Enlow that he
had been told by other employees that Enlow had ar-
ranged a union meeting. That remark called for and re-
ceived a response from Enlow and was a form of inter-
rogation. During the same conversation, Morey threat-
ened to discharge Enlow for organizing a union meeting.
On February 14 or 15, Morey interrogated employee
Miller concerning why Chartier wanted to go union.
During the same conversation, Morey threatened Miller
with plant closure by telling him that he could sell his
trucks and equipment and retire and that he would do so
before going union.
Particularly in the light of the totality of Respondent's
conduct herein, the interrogation of employees concern-
ing union activity as described above was coercive and
in violation of Section 8(a)(l) of the Act. "
The threats described above, to the effect that Re-
spondent would discharge employees for engaging in
union activities, also violated Section 8(a)(1) of the Act.
In addition, the threats described above, to the effect
9 These findings are based on the testimony of Enlow. Morey testified
that he never talked to anyone about the Union. I credit Enlow and do
not credit More)
"' This finding is based on the testimony of Miller. To the extent that
Morey's testimony is inconsistent with Miller's. I credit Miller
A PPG Induetries. Inc. Lexington Plant. Fiber Glass Division, 251 NLRB
1146 (1980: Pacific Intermount ain E.xpre,, 250) NLRB 1451 (1980).
that Respondent would sell its trucks and equipment and
go out of business before going union, constituted a vio-
lation of Section 8(a)(1) of the Act. t2
Company President Morey admitted that on February
12 he drove to employee Chartier's house where a union
meeting was to be held because he wanted to know
which employees were going to the meeting. Morey's
conduct constituted unlawful surveillance of the union
activity of employees in violation of Section 8(a)(1) of
the Act.
B. The Discharge of Dennis Chartier
1. The General Counsel's case
Dennis Chartier was employed by Respondent from
October 1977 until his discharge on February 12, 1980.
He was one of the key union activists. In September
1979 he contacted Union Business Representative
Schultz, but, after meeting with the other drivers, decid-
ed not to pursue the matter. In December 1979 Chartier
spoke to Enlow and other employees about organizing a
union. On or about February 6, 1980, Chartier once
again contacted Union Business Representative Schultz.
This time a meeting was scheduled for at 8 p.m. on Feb-
ruary 12, 1980, at Chartier's house. Chartier discussed
the upcoming meeting with a number of other employ-
ees. At about 4 p.m. on February 12, which was about 4
hours before the union meeting was scheduled to take
place at Chartier's house, Chartier was called into the
office of Respondent's president, Morey. Morey handed
Chartier a termination slip which stated that the termina-
tion was due to a lack of work. Chartier asked whether
that was the real reason for the termination. Morey said
that he had heard from the drivers that there was going
to be a union meeting at Chartier's house, and he an-
swered Chartier's question by saying, "[N]o, it's not, the
real reason is that you want the union. So, now I'm
going to let you be union, but you're not going to
through me."t3
Chartier was a key union activist. The Company har-
bored a virulent animosity against employees who en-
gaged in union activity. It demonstrated that animosity
by engaging in unlawful interrogation, threats, and sur-
veillance. On February 6, 1980, Chartier agreed to have
a union meeting at his house and employees were noti-
fied of that meeting. Morey acknowledged to Chartier in
the termination interview that he had heard from the
drivers that there was going to be a meeting at Chartier's
12 The threat to close down before going union was an impermissible
threat of economic reprisal to be taken solely on Respondent's own voli-
tion and, as such, constituted a threat in violation of Sec. 8(a)(1) of the
Act. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 617-620 (1969);
Hanover House Industries, Inc., 233 NLRB 164 (1977); Joseph Macaluso.
Inc. d/b/a Lemon Tree, 231 NLRB 1168, 1169 (1977), enfd. 618 F.2d 51
(9th Cir. 1980).
" These findings are based on the testimony of Chartier. Morey testi-
fied that he did not know of any union activity at the time of Chartier's
discharge and that in the termination interview he simply told Chartier
that he was laid off because of a lack of work As indicated above, I have
reservations concerning the reliability of Morey's testimony. The discrep-
ancies between his affidavit and his testimony as well as his attempts to
explain those discrepancies cast doubt on his candor I credit Chartier
over Mores
349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house. Thus, Morey did have knowledge of Chartier's
union activity before the discharge. Morey then admitted
to Chartier that Chartier was being discharged because
of his union activity. Counsel for the General Counsel
has established a very strong prima facie showing that
Chartier was discharged because of his union activity.
2. Respondent's defense
Beginning in December 1979, Respondent's business
began to show unprecedented losses. Respondent's presi-
dent, Morey, testified to the following: In early February
1980 Morey's accountant told him that he had to do
something about the losses immediately. On or about
February 7 or 8, 1980, Morey decided to lay off employ-
ees in order to reduce the drivers' hours and cut payroll
costs. He went over the list of drivers to see who the
Company would least miss. He chose Chartier for the
layoff because Chartier had a poor attitude toward his
work, he did not take proper care of his equipment, and
he often came to work late. When Chartier was hired in
October 1977, he did a good job, but during the last 6
months to a year before his discharge his attitude dete-
riorated and he did not care about anything. Morey had
spoken to him about that several times.
On February 11, 1980, Morey held a safety meeting
for all the drivers. They met after work and were not
paid for the time. During that meeting, Morey spoke
about the cost to the Company of accidents, and he spe-
cifically named Chartier and Enlow as two drivers who
had cost the Company a lot of money. Chartier left
before the meeting was over. That evening Morey called
Chartier on the telephone and criticized him for leaving
the meeting early. Chartier replied that everyone at the
meeting was just reminiscing, that he was tired and
hungry, and that his girlfriend was waiting for him out-
side and he thought the meeting was over. 4
Respondent's general manager, MacDonald, testified
that he had received a complaint about Chartier's driving
from the highway patrol and that he himself had ob-
served Chartier tailgating cars and switching lanes.
Respondent has adduced testimony to indicate that it
was not satisfied with Chartier's work or attitude. It has
also established that it was having financial difficulties.
However, there is a fatal flaw in Respondent's defense.
Respondent contends that the layoff was necessitated by
its need to reduce the drivers' hours and costs, and that
Chartier's work habits were considered only with regard
to which driver should be laid off. However, Respond-
ent's records, though they show variations from week to
week, indicate that during this period the overall drivers'
hours were increasing rather than decreasing.5 Even
more critical, Respondent's records indicate that a new
driver, Ed Long, was hired on February 13, 1980, just I
day after Chartier was discharged. Long was an experi-
enced driver as was Chartier and he received the same
"I Morey testified that in that telephone conversation Chartier was in-
subordinate and cursed at him. I credit Chartier's version of the conver-
sation, which is set forth above.
" Respondent's general manager, MacDonald, testified that the drivers'
hours for the fourth quarter of 1979 were 7,677, for the first quarter of
1980 (the quarter in which the discharges took place) were 9,927, and for
the second quarter of 1980 were 10,107.
pay as Chartier. Apparently, when it hired Long on Feb-
ruary 13, Respondent felt the need to increase the driv-
ers' hours. Its claim that it felt that it had to reduce the
drivers' hours the previous day by discharging Chartier
is simply not credible.
3. Analysis and conclusions
In Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083, 1089 (1980), 6 the Board applied the "test of
causation" that has been set out by the United States Su-
preme Court in Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977), and in reliance
on that decision held:
Thus, for the reasons set forth above, we shall
henceforth employ the following causation test in
all cases alleging violation of Section 8(a)(3) or vio-
lations of Section 8(a)(1) turning on employer moti-
vation. First, we shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
"motivating factor" in the employer's decision.
Once this is established, the burden will shift to the
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct. 14
4 In this regard we note that in those instances where, after all
the evidence has been submitted, the employer has been unable to
carry its burden, we will not seek to quantitatively analyze the
effect of the unlawful cause once it has been found. It is enough
that the employees' protected activities are causally related to the
employer action which is the basis of the complaint. Whether that
"cause" was the straw that broke the camel's back or a bullet be-
tween the eyes, if it were enough to determine events, it is enough
to come within the proscription of the Act.
As set forth above, the General Counsel has made a
prima facie showing sufficient to support the inference
that Chartier's union activity was a motivating factor in
Respondent's decision to discharge him. Also as set forth
above, Respondent's defense does not withstand scrutiny,
and Respondent has not demonstrated that the discharge
would have taken place even in the absence of Chartier's
union activity. I therefore find that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging Char-
tier because of his union activity.
C. The Discharge of Enlow
1. The General Counsel's case
Thomas Enlow was employed as a truckdriver by Re-
spondent from early August 1979 until his discharge on
February 29, 1980.
Enlow was a key union activist. In December 1979 he
spoke to 9 or 10 of the approximately 15 drivers working
for Respondent about unionization. In early February,
after Chartier had contacted Union Business Representa-
tive Schultz, Schultz called Enlow. Enlow was instru-
16 See also Weather Tamer. Inc. and Tuskegee Garment Corporation, 253
NLRB 293 (1980).
350
BUILDERS DISTRIBUTORS SAND AND GRAVEL, INC.
mental in scheduling the union meeting for February 12,
1980, at Chartier's apartment.
As set forth above, Respondent harbored virulent ani-
mosity against employees who engaged in union activity.
That animosity was expressed in unlawful threats, inter-
rogation, and surveillance, as well as by the unlawful dis-
charge of Chartier because of Chartier's union activity.
On February 12, Respondent's president, Morey, interro-
gated Enlow as to whether Enlow was going to attend
the union meeting. In the same conversation Morey told
Enlow and other employees that anyone who went to
the meeting would be fired. Enlow went to the union
meeting at Chartier's apartment that evening. Morey en-
gaged in unlawful surveillance of that meeting. The fol-
lowing day, February 13, Morey told Enlow that five
drivers had told him that Enlow had organized the union
meeting. When Enlow denied it, Morey said that he was
going to talk to the drivers again and that if they gave
him the same story Enlow was going to be fired. Enlow
again denied that he was involved with the Union. Later
that day Enlow felt bad about lying to Morey about his
union activity and told Morey that he did try to organize
the men but only to go to a meeting so that they could
vote for themselves. Morey said that he would think it
over and that he would decide later. From February 14
until his discharge on February 29 Respondent only
called Enlow in to work on a intermittent basis. Before
that he had worked regularly. On February 29 he was
given a layoff slip stating that he was being laid off be-
cause of a lack of work. He has not worked since that
time.
The facts set forth above establish a strong prima facie
showing that Enlow was discharged because of his union
activity.
2. Respondent's defense
Respondent's defense with regard to Enlow is substan-
tially the same as it was with regard to Chartier. Re-
spondent contends that it decided that a layoff was nec-
essary for purely economic reasons, and that Enlow was
chosen for the layoff because the Company would miss
him less than the other drivers. Morey testified that
Enlow had too many accidents, that he had been caught
in a coffeeshop when he should have been working, that
he did not take care of his equipment, and that he was
often late for work. Enlow was involved in accidents in
April and December 1979 and on January 30, 1980. On
February 11, 1980, Morey held a safety meeting in which
Enlow and Chartier were named in connection with ac-
cident problems. However, no threat was made to dis-
charge either of them because of the accidents. Enlow
was discharged almost a month after the last accident.
Respondent's defense with regard to Enlow is uncon-
vincing for the same reasons that the Chartier defense
failed. Respondent does not contend that Enlow was dis-
charged for poor work in itself. He was discharged ac-
cording to Respondent because of a need to reduce the
drivers' hours caused by Respondent's adverse economic
position, and his work was considered only with regard
to deciding which of the employees were to be let go.
As set forth above, during the critical period the tend-
ency was for Respondent to increase rather than to de-
crease the drivers' hours. In addition, Respondent hired a
new driver, Pete Hersch, on February 22, 1980. That
was after Respondent began to use Enlow only on an in-
termittent basis and only 7 days before Enlow was dis-
charged. Hersch was an experienced driver and received
the same pay that Enlow had received. The hire of
Hersch at that time refutes Respondent's contention that
it had to fire Enlow because of the need to reduce the
drivers' hours.
3. Analysis and conclusions
The test set forth in Wright Line, supra, as detailed
above, applies to Enlow as it did to Chartier. As set
forth above, the General Counsel has made out a prima
facie showing sufficient to support the inference that
Enlow's union activity was a motivating factor in Re-
spondent's decision to discharge him. Respondent's de-
fense does not withstand scrutiny, and Respondent has
not demonstrated that the discharge would have taken
place even in the absence of Enlow's union activity. I
find that Respondent violated Section 8(a)(3 ) and (1) of
the Act by discharging Enlow because of his union ac-
tivity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship 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 Respondent has engaged in certain
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Chartier
and Enlow in violation of Section 8(a)(3) and () of the
Act, I recommend that Respondent be ordered to offer
them reinstatement and to make them whole for any loss
of wages and other benefits resulting from their dis-
charges by payment to each of them of a sum of money
equal to the amount he normally would have earned as
wages and other benefits from the date of his discharge
to the date upon which reinstatement is offered, less net
earnings during that period. The amount of backpay
shall be computed in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). 7
It is further recommended that Respondent be ordered
to preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due.
" See. generally. hIis Plumbing d Heating Co.. 138 NLRB 716 (1962).
351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by:
(a) Coercively interrogating employees about union ac-
tivities.
(b) Threatening to discharge employees for engaging
in union activities.
(c) Threatening to sell its trucks and equipment and to
go out of business before going union.
(d) Engaging in surveillance of the union activities of
its employees.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Chartier and Enlow because of their
union activities.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and on the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 18
The Respondent, Builders Distributors Sand and
Gravel, Inc., Lynwood, Washington, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for engaging in activity on behalf of
Teamsters Union Local 38, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
(b) Coercively interrogating any employee about union
activity.
(c) Threatening to discharge any employee for engag-
ing in union activity.
(d) Threatening to sell its trucks and equipment and to
go out of business before going union.
(e) Engaging in surveillance of the union activity of
any of its employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Dennis Chartier and Tom Enlow full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or other rights and privileges, and make
them whole, with interest, for lost earnings in the
it In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due.
(c) Post at its Lynwood, Washington, place of business
copies of the attached notice marked "Appendix. " 9
Copies of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against any employee for engaging in activity
on behalf of Teamsters Union Local 38, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other union.
WE WILL NOT coercively interrogate any em-
ployee about union activity.
WE WILL NOT threaten to discharge any employ-
ee for engaging in union activity.
WE WILL NOT threaten to sell our trucks and
equipment and to go out of business before going
union.
WE WILL NOT engage in surveillance of the
union activity of any of our employees.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer full reinstatement to Dennis Char-
tier and Tom Enlow with backpay plus interest.
BUILDERS DISTRIBUTORS SAND AND
GRAVEL, INC.
352