Central Dispatch Inc.

National Labor Relations Board - Board Decisions

May 25, 1977

229 N.L.R.B. 979 (N.L.R.B. 1977)

CENTRAL DISPATCH INC.
Central Dispatch Inc. and Mike D. DiGirolamo and
John L. DiGirolamo and John Beyers, Jr. Case
17-CA-7174
May 25, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 11, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of the Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Central Dispatch, Inc., Kansas City, Kansas, its
officers, agents, successors, and assigns, and Mike D.
DiGirolamo and John L. DiGirolamo, shall take the
action set forth in the said recommended Order, as so
modified:
1. At the end of paragraph B, 1 delete the period
and add the following:
",except that this provision of the Order shall not
apply to Mike D. DiGirolamo and John L. DiGirola-
mo insofar as it makes them personally liable for any
loss of pay or benefits."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Administrative Law Judge found Mike D. DiGirolamo and John
L. DiGirolamo personally liable for payment of backpay. Although they are
named in the complaint, neither the pleadings nor testimony adduced at the
hearing indicate the extent, if any, of their ownership of, or interest in,
Respondent corporation. Accordingly, in the absence of such evidence, we
shall not hold them personally liable for the payment of backpay. Cf. Ogle
Proection Se'ice, Inr.. 149 NLRB 545 (1964).
229 NLRB No. 131
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present evidence and arguments, the National
Labor Relations Board has decided that we have
violated the National Labor Relations Act. We have
therefore been ordered to post this notice and to do
what it says.
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through represen-
tatives of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
Accordingly, we assure you that:
WE WILL NOT violate these rights of yours.
WE WILL NOT question you, in violation of the
Act, about your union membership, affiliation,
sympathies, desires, or activities.
WE WILL NOT threaten you with discharge, job
termination, or job loss because you want to join
a union or are active on behalf of a union, or want
to bargain with us collectively as a group.
WE WILL NOT give you the impression that your
union activities are under our surveillance or that
we have an "in" with the Union so that we know
all about your union activities and who among
you is active in the Union, or that the Union will
let us do whatever we want to do regardless of
your wishes.
WE WILL NOT threaten to go out of business or
to change our operations to a "skeleton" force, or
to eliminate or reduce your jobs if you join or are
active for the Union, or if you become unionized
or want to bargain with us collectively as a group.
WE WILL NOT discharge you, terminate your
employment, lay you off, furlough you, or
otherwise change the nature of your employment
or discriminate against you, or threaten to do so,
because you have joined or affiliated with a
union, or have union sympathies, or are active on
behalf of a union, or wish to bargain with us
collectively as a group.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization.
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL. offer John Beyers, Jr., James E.
Lewis, Clinton R. Perry, Curtis E. Cherry, Sr., and
Cindy Bobinger immediate, full, and uncondi-
tional reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equiva-
lent jobs and seniority with us, and WE WILL. pay
them for any wages and benefits lost by them
because of our termination of their employment
on June 10 (Beyers), June 15 (Lewis, Perry, and
Cherry), and August 27, 1976 (Bobinger), plus
interest, except that this provision shall not apply
to Mike D. DiGirolamo and John L. DiGirolamo
insofar as it makes them personally liable for any
loss of pay or benefits.
WE WILL forthwith remove from our records all
indications that any of the above employees were
discharged by us for any fault on their part; and
WE WILL NOT write or tell anybody that.
WE WII L, as of June 4, 1976, upon request,
recognize and bargain collectively in good faith
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of Ameri-
ca, Local #41, as the exclusive bargaining
representative of our employees in the following
appropriate collective-bargaining unit, and em-
body in a signed agreement any understanding
reached:
All truckdrivers and warehousemen at the
terminal at 2300-2304 Guinotte Avenue,
Kansas City, Missouri, excluding office
clerical employees, guards and supervisors
as defined in the Act.
CENTRAL DISPATCH INC.
DECISION
Preliminary Statement; Issues
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, el seq. (Act), based upon a
complaint issued on July 30, 1976, by the Board's Regional
Director for Region 17, growing out of a charge filed on
June 21 as amended July 20 and 30,1 was heard by me in
Kansas City, Kansas, on August 30, with all parties
participating throughout and afforded full opportunity to
present evidence and arguments, as well as to file posttrial
statements or briefs, which were received on September 24.
Record and posttrial statement and brief have been
carefully considered.
The principal issues presented are whether Respondent
Employer has violated Section 8(a)(l), (3), and (5) of the
Act by coercively interrogating employees concerning their
union activities and sympathies, creating the impression
I All dates are 1976 unless otherwise specified.
2 Perry (as well as the remainder of General Counsel's witnesses)
impressed me as an extremely credible witness. He was not cross-examined
that it was conducting surveillance over those activities,
threatening job loss as well as discharge for union activities
and also that it would go out of business in the event of
unionization, discharging employees because of their union
activities, and refusing to recognize its employees' duly
designated Union as bargaining representative; and wheth-
er, by reason thereof, Respondent has undermined and
destroyed its employees' Union and rendered unfeasible a
fair statutory election under the Act.
Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent Central Dispatch, Inc.,
a Missouri corporation, has been and is engaged in the
furnishing of interstate transportation services from its
Kansas City, Missouri, facility or terminal. In the course
and conduct of that business during the representative year
immediately preceding issuance of the complaint, Respon-
dent corporation grossed revenues exceeding $50,000.
I find that at all material times Respondent corporation
has been and is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act; and
that at all of those times International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local #41 (Union herein) has been and is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Respondent corporation (Respondent herein) is in the
business of supplying manned truck cabs for attachment to
trailer trucks utilized in haulage of merchandise. Both its
president-manager, John L. DiGirolamo, and its vice
president-secretary-treasurer, Mike D. DiGirolamo (broth-
ers), are active in the actual operation of the business. It is
stipulated that in the period between May 17 and June 11
(1976) it had in its employ not less than 7 nor more than 10
drivers.
Around mid-April, within a day or two after driver
Clinton R. Perry started working for Respondent, Mike
DiGirolamo asked Perry if he belonged to a union. Perry
said no. DiGirolamo replied that Respondent did not want
a union there and that if Perry was ever caught "talking to
the union or anything," he would be "fired on the spot." 2
Nevertheless, Respondent's drivers determined in the
latter part of April and the first half of May to organize
and select and designate a union to bargain collectively on
their behalf with Respondent. On May 17, four of the
drivers in writing (i.e., signed union cards) authorized and
designated Teamsters Local #41 to represent them to
bargain collectively with Respondent; and three additional
concerning the above episode, which stands totally uncontradicted since.
without explanation, Mike DiGirolamo did not testify.
980
CENTRAL DISPATCH INC.
drivers did so on May 19, 27, and June 7, for a total of
seven. The following chart shows the number of drivers
thus designating the Union, vis-a-vis the total driver work
force on the dates shown:
1976 Cards Total Total I of Drivers
Sined Sitned Drivers Sitaed
Hay 17 4A 8 50
Hay 19 1 5 8 63
tiay 26 1 6 7 86
June 7 1 7 10 70
In every case the union card-signing drivers were in
Respondent's employ as part of its driver work force on the
dates shown. At the hearing, Respondent further conceded
that it had and has no "warehousemen," but only drivers,
in its work force (plus one office clerical employee,
Bobinger, as described below).
Upon the basis of the six signed bargaining representa-
tion authorization cards in its possession on May 26, the
Union filed those cards together with its RC petition with
the Board's Kansas City Regional Office on June 2, seeking
Board certification through a statutory election under the
Act. A hearing on that petition was scheduled for June 14.
The hearing (and the election) never took place, in view of
Respondent's request that it be postponed and develop-
ments now to be described.
On Friday, June 4 - 2 days after the Union filed its
petition with the Board's Regional Office for an election,
and presumably I day after Respondent received official
notification thereof - Mike DiGirolamo called driver
Perry into the office (in the presence of John DiGirolamo),
and then proceeded into the terminal with him and bluntly
asked him (Perry) if he was organizing for the Union. Perry
- who had signed a union card on May 17 - denied it.
DiGirolamo warned Perry that if he was, he (Perry) "would
be directly responsible for a dozen people losing their
jobs," and that in the event of unionization he (DiGirola-
mo) would close the place down or just operate it by
himself with his brother John. Again that same evening
(June 4), in the dispatcher's office, in the presence of Mike
DiGirolamo and driver Curtis E. Cherry, Sr., John
DiGirolamo demanded to know from Perry and Cherry
whether the drivers were "organizing the union." Perry
denied it. DiGirolamo replied that he knew their cards
were at the union hall and that by Monday he would know
who had signed them and would fire them all. On the same
evening (Friday, June 4), John DiGirolamo stated to driver
Cherry that he (DiGirolamo) had been contacted by the
Union, was aware that the Union was "trying to be
organized in [here]," and that if Cherry had anything to do
with it he was "fired." When Cherry - who had signed a
union card on May 17 - denied it, DiGirolamo warned
him to "tell [me] the truth" because "I'm going to find out
Monday morning anyway" - from the Union's president
(Roy Williams), whom DiGirolamo claimed to know "real
well" and who had allegedly told him he (DiGirolamo)
"could do whatever he [DiGirolamo] wanted" without
union interference - and he threatened that "if necessary"
he would fire all of the drivers and operate the business
alone with his brother Mike and that "Come Monday
morning [I don't] know if anybody would be working."
On Monday, June 7, five of the drivers discussed among
themselves, at a local coffee shop, the developments of
Friday, June 3, involving the interrogation of and threats to
Perry and Cherry. In consequence of this discussion, and
being apprehensive about their jobs, drivers John Beyers,
Jr., and David Newkirk (both of whom had signed union
cards and were leaders in the union activity) visited the
union hall, where the union representative informed them
it had already filed a petition for a statutory election in
order to be certified by the Board as their collective-
bargaining representative.
On the following morning - Tuesday, June 8 - when
driver Beyers reported for work as usual, he was con-
fronted by John DiGirolamo with the surprising assertion
that there was no work for him that day, with the
accompanying remark that three drivers and "one of them
was you" had been "down at the union hall" the previous
week. Although Beyers denied this or that he knew
"anybody that was talking about the union," nevertheless
at DiGirolamo's insistence he identified two of his fellow
drivers as being involved in union activity. DiGirolamo
then indicated to him he could telephone in later that day
for work the next day. On the following day (Wednesday,
June 9), Beyers received a work assignment for the full day,
including preparations for picking up a trailerload of tires
at around 6:30 a.m. the next day (Thursday, June 10) at
Lee Tire Company for haulage to Riss International.
Also on June 9, Union Representative Chiavola met
briefly with John DiGirolamo, at the latter's request, in
DiGirolamo's office. Chiavola, whose union at this time
held bargaining authorization cards signed by seven of
Respondent's drivers, reiterated to DiGirolamo that the
Union represented Respondent's employees and wished to
negotiate on their behalf. This drew from DiGirolamo only
the retort that he was "in no position financially to discuss
or negotiate a contract" and that he could not discuss the
matter at all, including Respondent's finances.
On the next morning - Thursday, June 10 - driver
Beyers showed up at 6 a.m. but had to wait until John
DiGirolamo came in to give him the keys to the convey-
ance with which he was supposed to pick up the load of
tires at Lee Tire Company. When Beyers arrived at the tire
company, since this was the first time he had ever
attempted to load tires into a trailer, he asked and was
shown how to do it. Although the 45-foot trailer had a
suggested capacity of only 900 - 1,000 tires, his work order
called for loading 1,250 tires, and he was unassisted except
for about 10 - 15 minutes in the morning when Mike
DiGirolamo came over and lent a hand. However, by
around 5:30 or 6 p.m., Beyers had succeeded in loading 969
tires into the trailer, which he then delivered to the
consignee (Riss International) as required. When he
thereafter reported to Respondent's terminal, he was
"jumpled ]" by Mike DiGirolamo, who demanded to know
why he had not loaded 1,250 tires into the assigned trailer.
Beyers' explanation that he had loaded all he could by
following Lee Tire Company's express instructions on how
to load them, fell on deaf ears. Claiming that he now had to
unload the entire truck and reload it to get 1,250 tires on,
DiGirolamo fired Beyers on the spot and handed him a
final paycheck which he had ready.
981
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the same or next day (June 10 or 11), Respondent's
driver Newkirk was approached in Respondent's yard by
Mike DiGirolamo, who asked him if he knew which of the
drivers was trying to organize for the Union, and
specifically whether Perry and Cherry were among them.
Newkirk - who had signed a union card on May 19 -
denied any knowledge. On June I I (Friday), Respondent
sent Newkirk, Perry, and Cherry to Lee Tire Company to
reload the "required" 1,250 tires into a different 45-foot
trailer. Even among the three of them (i.e., Newkirk, Perry,
and Cherry), they were finally able to load only around 960
tires - i.e., less than Beyers working almost by himself -
and on the following day (Saturday, June II11) Newkirk
returned to load some more on to the limit possible, around
1,130-1,140, still substantially short of the assigned 1,250
tires.
Around the next workday, Monday, June 14, Mike
DiGirolamo informed driver Cherry that Respondent had
decided to change the wage system of its drivers to "a
percentage basis" (i.e., one-third) and gave Cherry until the
end of the week to let him know if he was willing to remain
on that basis. After figuring it out, Cherry concluded that
this would mean about a 50-percent reduction in his pay;
accordingly, he informed Respondent's dispatcher (Bo-
binger at that time) on Thursday, June 17, that he could
not continue on such a basis. Cherry was, however, entirely
willing and even desirous to continue on the existing pay
basis.
On June 16 (Wednesday), Respondent's driver Perry was
likewise informed in the office by Mike DiGirolamo that
Respondent was "going to go on a percentage basis" with
its truckdrivers (i.e., one-third). After figuring it out, Perry
likewise determined that this would mean about a 50-
percent pay reduction for him. DiGirolamo told Perry he
"either had to take the percentage or [we don't] need [you]
any longer." When Perry pleaded that it was not fair to his
family, DiGirolamo summarily fired him.3
Also on the same day (Wednesday, June 16), when
Respondent's driver James E. Lewis reported back to the
terminal at midday, Mike DiGirolamo informed him there
would be "no further work for you." It is undisputed that
Respondent's dispatcher, Jerry Schones, had meanwhile
been taken off dispatch work and assigned to truckdriving
"because of the union dispute." On the next morning (June
17), DiGirolamo told Lewis, "We don't have enough work
for you." When Lewis again reported for work at 8 a.m.,
the following morning (Friday, June 18), DiGirolamo
:' Earlier that day, Perry had delivered a trailer consigned from Riss
International to Colony Paint Company. On arrival at Colony, Perry was
instructed to wait until the palletized load in the trailer was unloaded by
Colony employees. Perry reported this to Mike DiGirolamo, who directed
him to stay there and wait. This is evidentially uncontroverted by
DiGirolamo. At around noon. when about a third of the trailer had been
unloaded. Mike DiGirolamo instructed Perry to return to Respondent's
terminal; this was after Perry had continuously been pressing Colony's
receiving clerk to speed up the unloading and had continuously been
reporting the situation to Respondent's dispatcher. Also that day (June 16),
Mike DiGirolamo remarked to Perry that he had been informed by the
receiving clerk at Nabisco that he did not want Perry back because he took
"far too long to unload." Perry's testimony that he had never been told
anything like that, and that when he thereafter spoke to the Nabisco
receiving clerk, Art Bliss. and the latter denied he had ever said this, is
totally unchallenged here. Upon the record as a whole, I reject Respondent's
suggestion that the foregoing was the reason for Perry's discharge. This was
again claimed there was no work for him. When Lewis
thereupon explained to him that since he was a family man
he would meanwhile have to "start looking for a steady job
[elsewhere]," DiGirolamo assured him he would be in
touch with him for work assignments.
On Monday, June 21, the original unfair labor practice
charge here was filed against Respondent in the Board's
Kansas City Regional Office, which notified Respondent
of it that day.4 On that day, driver Lewis again reported for
work at 8 a.m. as usual, but was again informed by
DiGirolamo that there was still no work. When Lewis
observed that DiGirolamo had already marked down no
less than 15 trailers to be handled that very day, which
would require five or six drivers for loading and unloading,
and even two drivers for "spotting" 5 alone, DiGirolamo
told Lewis he would check it out and be in touch with him.
Not having heard from DiGirolamo by midmorning, Lewis
called him around 10 a.m., and approximately five times
thereafter throughout the day, but each time he was
informed that both of the DiGirolamos were out them-
selves on trucks. And throughout the next 3 days (Tuesday
- Thursday, June 22 - 24), Lewis continued to call back
throughout each day and was told the same thing. At no
time has Lewis ever been called back or contacted by
Respondent. Prior to June 16, he had steadily worked 38 -
42 hours per week for Respondent, without sign or
indication of any diminution of work or any criticism or
indication of shortcoming in his work performance. He had
signed a union card on May 26.
Also in the latter part of June, John DiGirolamo told
driver Newkirk he wished "to have a man-to-man talk"
with him, in the office, and asked him, "Why did [you] sign
the union card and turn it in without asking [us] about it?"
Newkirk - who had signed a union card on May 19 -
replied that he did not know what DiGirolamo was talking
about.6
A further request, but this time by formal certified mail
of August 20 (Friday), by the Union for collective
bargaining by Respondent, remains unanswered. But on
Monday, August 23, Mike DiGirolamo threw the Union's
letter on the desk of Respondent's office secretary, Cindy
Bobinger, and exclaimed that "Because of this, I'm going
to have to lay you off. Friday [August 27] will be your last
day. I'm just going to shut down and do whatever business
we can with John and I." She was accordingly terminated
on August 27, since which time she has remained
unemployed. She had previously served Respondent as its
in no way brought up to him when DiGirolamo continued at the end of that
day to urge Perry to remain in Respondent's employ under the suggested
new "percentage basis."
4 The record discloses that Respondent receipted for that notification on
Tuesday, June 22, by registered return receipt.
I I.e., unhooking a trailer from the tractor or cab, without unloading it.
Even "getting under" (i.e., hooking a tractor or cab to the trailer by backing
the tractor's fifth wheel under the front of the trailer) requires manpower, as
of course does manipulating and driving the coupled apparatus.
6 Newkirk, Respondent's most senior driver, was discharged by Respon-
dent on August 13, on the ground that he had not reported for work for 2
days. Newkirk concedes he did not do so, because he was job-hunting
elsewhere since he was underpaid in the face of poor working conditions
and had twice been denied a raise, and had, additionally, been invited by
Mike DiGirolamo to "look for [another]job ... there wouldn't be any hard
feelings." Newkirk is not included among the dischargees here.
982
secretary, with a full range of secretarial duties in addition
to some dispatching. 7
Respondent's Defenses
Much if not most of the foregoing is evidentially
undisputed by Respondent, who produced only one
witness, its president and manager, John L. DiGirolamo,
who conceded that he and his brother Mike did indeed
"ask the employees questions" since "it was entirely within
our right to know what was going on under the roof of our
business." So far as the threats of discharge for union
activity and in the event of unionization are concerned
they are likewise in essence undisputed (as DiGirolamo
testified, "Yes, they were said, they were said. I always try
to communicate with my employees"), it being Respon-
dent's contention that these were not "threats" but done
"out of necessity" since the business could not "afford a
unionized operation." As for the complained-of conveying
of the impression of surveillance over the employees' union
activities, it is amply established through substantial
credited and uncontroverted testimony of Respondents'
employees as recounted above. Concerning the mass
discharges of bargaining unit employees, it is Respondent's
unsupported assertion that they were discharged for "lack
of work" or claimed inefficiencies - both of which have
not only not been established by substantial credible
evidence as required, but the contrary of which is
established by substantial credible evidence upon the
record as a whole. There was no indication of "lack of
work" until the drivers attempted to exercise their statutory
right to bargain collectively, and their work performance
until that time was considered at least good enough.
DiGirolamo was unable to satisfactorily or credibly explain
Respondent's sudden mass discharge of its bargaining unit
employees on the heels of their protected organizational
activities and the Union's collective-bargaining request -
all within a context of his having made it abundantly plain
(as he does not deny) that he wanted no part of a union
operation. Respondent's possible suggestion that the mass
discharges of the card-signing employees were "accidental"
or coincidental is rejected as not established and as a
transparent pretext and myth. 8 Even according to DiGiro-
lamo, he took steps to "streamline" Respondent's opera-
tion in order to avoid dealing with the Union, by getting rid
of the drivers so as to avoid a unionized operation - the
true motive and reason for the discharges here.
Finally, insofar as the Section 8(a)(5) allegations are
concerned, DiGirolamo stated candidly at the hearing, "I
do not and will not sign a union contract. It is as simple as
that." He raises no question concerning the Union's
7 Respondent's discharge of Bobinger was added to the complaint, on
Respondent's consent, at the hearing, as a further alleged violation of the
Act.
X I also reject Respondent's patently fallacious contention that the
discharges were in consequence of its loss or alleged loss of its Riss
International account. As the record plainly shows, its "loss" of the Riss
account occurred, if at all, only on June 26 or 27, after the employee
discharges here, and because of Respondent's demand from Riss for a "raise
in the revenue." Furthermore. the testimony, of Respondent's driver
Newkirk throws doubt on whether the Riss account was realv', "lost" as
claimed. since according to Newkirk there was no reduction in its business
through at least July long after the drivers were fired. And Di(irolamo
CENTRAL DISPATCH INC.
representative status and freely concedes that in view of
that status no statutory election was ever needed or is now
needed; indeed, he goes so far as to insist that he
"recognized" the Union and is "willing" to "negotiate"
with it.9
B. Resolution and Rationale
While an employer may go out of business rather than
deal with a union 10, he may not, while continuing in
business, refuse to deal with a union lawfully designated by
his employees to bargain collectively for them." The
National Labor Relations Act gives employees the right to
bargain collectively and requires employers to do so where
a majority of employees in an appropriate bargaining unit
wish to do so. Here there is no question that a majority of
Respondent's employees in an appropriate bargaining unit
lawfully designated the Union to represent them in
collective bargaining with Respondent; nor is there any
question that Respondent simply wanted no part of the
Union. This however, was a choice for the employees, not
for the employer. Respondent's meeting with the Union on
one occasion to inform it in effect that it wanted no union
and would sign no contract or engage in meaningful
negotiation, did not, of course, constitute collective
bargaining. If Respondent wished to go into economic
issues, including any possible inability to pay union scale,
such questions were required to be bargained about with
the Union in good faith, including the opening up of
relevant financial records. N.LR.B. v. Truitt Mfg. Co., 351
U.S. 149 (1956). Here, instead, Respondent merely made it
clear that it would not operate with a union or bargain
meaningfully with its employees through their duly
designated collective-bargaining representative. In so doing
Respondent clearly violated its obligations under the Act
and prevented the lawful exercise of its employees'
statutory rights. Under the Act, the duty to bargain is
absolute and not dependent upon a respondent's (employ-
er's or union's) good-faith belief that no good or result will
be served thereby. Cf. N.L.R.B. v. Benne Katz, etc., d/b/a
Williamsburg Steel Products Co., 369 U.S. 736, 743, 747
(1962).
Going further here, in order to implement its announced
aim and intention, in defiance of Federal labor law. of
continuing to run a "nonunionized" operation, notwith-
standing its employees' desire to bargain collectively
through their union representative as they had the right to
do, Respondent also engaged in a wide-ranging pattern of
additional unfair labor practices, including coercive inter-
rogations of employees, creation of the impression among
them that their union activities were under its improper
finally conceded on cross-examination that "after you [DiGirolamo]
learned about the union, it was your intent to dump the Riss account to
streamline your business so you wouldn't have to deal with the union."
9 DiGirolamo also testified that shortly prior to his termination of the
drivers he directly offered them an "incentive program" or "proposition." at
a time when he knew the) were represented by the Utnion and without
taking it up with the Union. The complaint does not allege this as a violation
of the Act.
" Texvtile 'orkers L nionof iAmerica v. Darlington Ualnifaturing C(o. 380
IU.S. 263 (1965).
1 Cf. P. A. Ha ves. Inc. and P. H. Mechanical Corp. 226 NL RB 230. 235.
and cases cited in fn. 20 (1976).
983
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveillance through a suggested "in" or inside informant
at a high level of the Union, threats to employees that they
would be fired and lose their jobs if they continued with
their union activities, and also actual or constructive
termination, because of their union activity, of a majority
of its employees who had designated the Union as their
bargaining representative - thus scattering and despoiling
the bargaining unit, purportedly destroying the Union's
bargaining representative status, and high-handedly nulli-
fying its employees' rights under the Act to bargain
collectively. These are indeed serious violations, consti-
tuting a veritable catalogue of lawlessness ripping asunder
the basic fabric of the Act guaranteeing to employees the
right to bargain collectively if they - not their employer -
so desire. They go far beyond what the Supreme Court in
N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969)
announced is appropriate as a basis for a bargaining order
without that fair, intended statutory election under the Act
which the Employer made impossible. That the Union was
the duly designated bargaining representative of a decisive
majority - indeed, a large majority - of Respondent's
employees when Respondent embarked upon its field day
of lawless conduct and rode roughshod over its employees'
attempts to bargain collectively with it, is conceded by
Respondent, who at the hearing blandly asserted that "I
knew the union would be in there, I mean, you know, we
didn't have to go through an election and all that."
Respondent does not question the Union's bargaining
representational credentials - it simply wants no part of
any union: i.e., it does not really wish to bargain
collectively. But this it clearly may not do - as it could not
do the other things it did here toward its employees -
without seriously violating the Act, and I so find and
determine. Cf., e.g., N.L.R.B. v. Gissel Packing Company,
395 U.S. 575 (1969); N.LR.B. v. Sitton Tank Company, 467
F.2d 1371 (C.A. 8, 1972): Teledyne Dental Products Corp.,
210 NLRB 435 (1974); A. J. Krajewski Manufacturing
Company, 180 NLRB 1071 (1970).
Upon the foregoing findings and the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. Through their actions as found in "II," supra, and
substantially as alleged in the complaint, as amended,
Respondent has interfered with, restrained, and coerced,
and is continuing to interfere with, restrain, and coerce,
employees in the exercise of their rights guaranteed in
Section 7, in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, by:
(a) Coercively interrogating employees concerning their
and other employees' union membership, sympathies, and
activities.
(b) Creating the impression among employees that their
lawful union activities were under Respondent's surveil-
lance.
12 Cf, RC petition, complaint allegation, and Respondent's posttrial
letter (brief) of September 22, 1976.
(c) Threatening an employee that if the unionization
effort was successful, he would be responsible for the
employees' loss of their jobs.
(d) Threatening to discharge employees for assisting in
the Union organizational drive.
(e) Threatening to discharge employees in the event their
unionization drive succeeded.
(f) Threatening to close down or discontinue Respon-
dent's business, or to operate that business without the
employees who had designated the Union as their collec-
tive-bargaining representative, in the event that the
employees' unionization drive was successful.
(g) Terminating the employment (actually or construc-
tively) of and refusing or failing to reinstate or rehire
Respondent's employees John Beyers, Jr., James E. Lewis,
Clinton R. Perry, and Curtis E. Cherry, Sr., by reason of
their union membership, sympathies, or activities, or
because they designated the Union as their bargaining
representative.
(h) Discharging and failing to reinstate Respondent's
employee Cindy Bobinger in consequence of Respondent's
unlawful discharge of the foregoing employees and the
unlawful diminution of the work force, and in direct
consequence of the Union's continued demand to bargain
collectively.
(i) Engaging in the foregoing acts because Respondent's
employees designated the Union as their bargaining
representative, and because of their membership in or
affiliation and sympathy with and activities on behalf of
the Union, and because of the Union's attempt to organize
Respondent's facility and bargain with Respondent collec-
tively.
(j) Failing and refusing, since June 9, 1976, under the
above circumstances and while engaging in the foregoing
program and pattern of unlawful activities in violation of
the Act, to bargain collectively in good faith with the
Union (International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Local #41)
as the exclusive duly designated collective-bargaining
representative of Respondent's employees in the following
appropriate bargaining unit:
All truckdrivers and warehousemen employed at the
terminal at 2300-230412 Guinotte Avenue, Kansas
City, Missouri, excluding office clerical employees,
guards and supervisors as defined in the Act.
3. Through their actions as found in "11," supra, and
substantially as alleged in the complaint, as amended,
Respondent has discriminated, and continues to discrimi-
nate, in regard to the hire, tenure, and terms and conditions
of employment of its employees, in order to discourage
membership in the Union, in violation of Section 8(a)(3) of
the Act through Respondent's threats to discharge and
terminate the employment of its employees and through its
actual and constructive termination of the employment of
Respondent's employees and failure and refusal to rein-
state or rehire them as enumerated in Conclusion of Law 2,
supra.
984
CENTRAL DISPATCH INC.
4. Through their actions as found in "II," supra, and
substantially as alleged in the complaint, as amended, and
as set forth in Conclusions of Law 2 and 3, supra,
Respondent has failed and refused, and is continuing to fail
and refuse, to bargain collectively in good faith with the
Union as the duly designated exclusive bargaining repre-
sentative of Respondent's employees in the foregoing
appropriate bargaining unit.
5. Respondent has engaged and is continuing to engage
in said unfair labor practices with the purpose and effect of
destroying the Union's support and collective-bargaining
representational status among Respondent's employees in
the foregoing bargaining unit, and to avoid and evade
Respondent's collective-bargaining obligations under the
Act.
6. The aforesaid unfair labor practices and each of
them have affected, are affecting, and unless permanently
restrained and enjoined will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having been found to have terminated the employment
of employees and to have interfered with, restrained, and
coerced them in the exercise of their Section 7 rights, in
violation of Section 8(a)(3) and (1) of the Act, Respondent
should, as is usual in cases of that variety, be ordered to
cease and desist from continuing or other such violations,
and to offer reinstatement to the terminated employees,
with backpay and interest computed as explicated by the
Board in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1
consider it only fair to include Respondent's former
secretary-dispatcher Cindy Bobinger among the terminated
employees who should be offered reinstatement (even
though she was not a member of the bargaining unit),
since, as shown and found, it is clear that her discharge was
the direct consequence and outflow of Respondent's
unlawful mass discharge of the drivers and of the Union's
continued demand to bargain collectively, as above
described. Respondent should also, as usual in cases of this
nature, be required to preserve and open its books and
records to the Board's agents for backpay computation and
compliance determination purposes. In view of the serious
nature of the violations here, Respondent should further be
ordered to cease and desist from in any way violating its
11 Cf.. e.g., NL. R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
14 See also Amsterdam Wrecking & Salvage Company, Inc., 196 NLRB
113 (1972)., enfd.. 472 F.2d 153 (C.A. 2. 1973); Medle.v Disilling Compani.
187 NLRB 84 (1970), enfd., 453 F.2d 374 (C.A. 6, 1971); Gibson Products
Company) of Washington Parish, La., Inc., 185 NLRB 362 (1970). That any
possible subsequent loss of union majority. under the circumstances shown.
would not preclude a bargaining order. see Gissel, supra at 610; N.L.R.B. v.
Benne Kat., etc., d' ba Williamsburg Steel Products Co., 369 U.S. 736, 748,
fn. 16 (1962): Franks Bros. Companv v. N.L.R.B., 321 U.S. 702 (1944).
N.L.R.B. v. P. Lorillard Companv. 314 U.S. 512, 513 (1942): Gibson Products
Company, supra at 364. An employer may hardly insist upon a right to retain
the fruits of his own illegal action in dispelling a union majority through
violating the Act. Franks Bros. Co., supra at 704. It is additionally to be
noted that in this case the Union's recognitional/bargaining request based
upon the designation of the bargaining unit employees was rejected out of
hand by an employer who attempted to escape from his collective-
employees' rights under the Act.13 The conventional
informational notice to employees will also be required.
There remains the question of what, if any, additional
remedy the circumstances require because of Respondent's
action in continuing to refuse to bargain with the Union in
good faith after its mass termination of employment of the
majority of the card-signing employees in the bargaining
unit for attempting to bargain collectively.
In N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575
(1969), the Supreme Court described the circumstances
under which it is appropriate to issue a bargaining order
without an election under the Act. The instant case fits well
within the sweep of Gissel. I find that Respondent's
described unlawful actions in terminating the employment
of a majority of the card-signing employees in the
bargaining unit for attempting to exercise their statutorily
guaranteed right to bargain collectively, coupled with the
other unlawful actions described, were egregious and
pervasive under the Act's standards, thrusting at the heart
of the Act's purposes and guarantees; that they have had
and will "have the tendency to undermine majority
strength and impede the election processes" (Gissel, supra
at 614); that they were and continue to be of " 'such a
nature that their coercive effects cannot be eliminated by
the application of traditional remedies, with the result that
a fair and reliable election cannot be had' " (id. at 614);
that, under the circumstances described and found, "the
possibility of erasing the effects of [Respondent's] past
practices and of ensuring a fair election . . . by the use of
traditional remedies . . . is slight and that employee
sentiment once expressed through cards would, on balance,
be better protected by a bargaining order" (id. at 614-15);
and that there is "insufficient indication that an election
... would definitely be a more reliable test of the
employees' desires than the card count taken before the
unfair labor practices occurred" (id. at 616).14
It is further to be noted that, as shown above, Respon-
dent here raise no question about the Union's majority or
bargaining representational status, and explicitly concedes
and, indeed, maintains that no election was or is necessary.
For all of these reasons, it is just and appropriate that a
bargaining order be issued here, and the recommended
Order will so provide, as of June 4, 1976, when Respondent
embarked upon its program of flagrant and pervasive
unfair labor practices designed to oust the Union and abort
its employees' statutory right to bargain collectively.t5
bargaining obligation by discharging those employees, thereby not only
pervasively violating central provisions of the Act aimed against discrimina-
tion, but also demonstrating flat repudiation of and contempt for the
collective-bargaining principle, another cardinal policy feature of the Act
These are by no means trivial or minor violations, but are aimed at the inner
core of the Act. As has been pointed out, discriminatory discharge "goes to
the very heart of the Act" (A. J. Krajewski Manufacturing Company, 180
NLRB 1071 (1970); and is the "surest method of undermining a union's
majority or impeding an election process" (N.L.RB. v. Silton Tank
Company, 467 F.2d 1371, 1372 (C.A. 8. 1972); and, accordingly, a bargaining
order is upon that basis alone warranted even in the absence of an 8(a)5)
violation. Gissel, supra at 610 and 614; Sitton, supra. The 8(a){5) violation
thus merely strengthens the case for, but is not a prerequisite to. the issuance
of a Gissel bargaining order.
is Multi-Medical Convalescent and Nursing Center of Towson. 225 NLRB
429 (1976): Kurt A. Perschke d b/a Perschke Has & Grain. 222 NLRB 60
(Continued)
985
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER' 6
It is hereby ordered that Respondent Central Dispatch
Inc., its officers, agents, successors, and assigns, and Mike
D. DiGirolamo and John L. DiGirolamo, and their agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees, in violation of the National
Labor Relations Act, as amended, concerning its or other
employees' union or other protected organizational mem-
bership, affiliation, sympathies, or concerted activities.
(b) Creating among employees, in violation of the Act,
the impression that their lawful union or other protected
concerted activities are under surveillance.
(c) Threatening employees that they will be responsible
for the loss of their or other employees' jobs, or for
discharge in the event they engage or continue to engage in
union or other protected concerted organizational mem-
bership, affiliation, sympathies, or activities; or with
discharge or termination of employment for assisting a
union, or if employees succeed in unionizing their place of
employment, or in the event employees persist in seeking or
attempting to bargain collectively.
(d) Threatening to close down or cease its business, or to
operate with a "skeleton" staff or without employees who
have designated or wish to designate a union as their
bargaining representative, or in the event the employees
form a collective-bargaining unit and seek to assert or
persist in asserting their right to bargain collectively.
(e) Terminating the employment, actually or construc-
tively, or directly or indirectly threatening to do so, of any
employee for engaging or seeking to engage in or assert any
right protected by the Act.
(f) Engaging in any activity in violation of the Act in
order to dissipate and destroy the bargaining representa-
tion authority of any duly designated bargaining represen-
tative of Respondent's employees.
(g) Discouraging or encouraging membership in, affilia-
tion with, support of, or lawful activities on behalf of,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local #41, or any
other union or labor organization of Respondent's employ-
ees, by discharging, terminating the employment of, laying
off, furloughing, suspending, or otherwise directly or
indirectly altering the nature of the employment or
otherwise discriminating in regard to the hire, tenure, or
terms or conditions of employment, of any employee, or
threatening to do so.
(h) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
(1976): Corl Corporation, a whollh owned suhsidiary of O'Conner Induttries,
222 NLRB 243, fn.2 (1976); Baker Machine & Gear, Inc., 220 NLRB 194
(1976); Trading Port, Inc., 219 NLRB 298 (1975).
z6 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 which follows herein shall. as
provided in Sec. 102.48 of those Rules and Regulations, be adopted by the
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of his
own choosing; to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection; or to refrain from any and all such activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Offer to John Beyers, Jr., James E. Lewis, Clinton R.
Perry, Curtis E. Cherry, Sr., and Cindy Bobinger immedi-
ate, full, and unconditional reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights, privileges, benefits, and
emoluments, including pay raises in the interim and also
currently applicable pay scales; and make them whole for
any loss of pay (including overtime, holiday, and vacation
pay, and insurance benefits and reimbursements, if any),
together with interest, in the manner set forth in "The
Remedy" portion of the decision of which this Order forms
a part.
(b) Forthwith expunge from the personnel and employ-
ment records of John Beyers, Jr., James E. Lewis, Clinton
R. Perry, Curtis E. Cherry, Sr., and Cindy Bobinger all
statements, references, or entries that they or any of them
were discharged or terminated by Respondent for any
work-related fault, deficiency, reason; and refrain from
referring to such reasons for those discharges or termina-
tions, in writing or orally, to any other employer,
prospective employer, or agency.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage scale records and notations, social
security payment records, timecards, personnel records and
reports, and also all other records and entries necessary or
appropriate to determine the amounts of backpay and
other sums and benefits due under and the extent of
compliance with the terms of this Order.
(d) Upon request, as of June 4, 1976, bargain collectively
in good faith with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local
#41, as the exclusive bargaining representative of Respon-
dent's employees in the following appropriate collective-
bargaining unit, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached:
All truckdrivers and warehousemen employed at the
terminal at 2300 - 2304 Guinotte Avenue, Kansas City,
Missouri, excluding office clerical employees, guards
and supervisors as defined in the Act.
(e) Post at its premises at 2300 - 2304 Guinotte Avenue,
Kansas City, Missouri, copies of the attached notice
marked "Appendix."' 7 Copies of said notice, on forms
provided by the Board's Regional Director for Region 17,
Board and become its findings, conclusions. and Order, and all objections
thereto shall be deemed waived for all purposes.
17 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice "Posted by Order of the National
Labor Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board."
986
CENTRAL DISPATCH INC.
after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon
receipt thereof and 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
11 It is assumed and recommended, in view of the determination and
Order here. that the Union's petition for election in Board Case 17-RC-
that said notices are not altered, defaced, or covered by any
other material.
(f) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith. 18
8041. which has not been consolidated with the instant case, will be
routinely dismissed as moot by the Regional Director or the Board.
987