Contractors Cargo Co., Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1975

218 N.L.R.B. 549 (N.L.R.B. 1975)

CONTRACTORS CARGO CO., INC. 549
Contractors Cargo Co ., Inc. and Teamsters Automo-
tive Workers Local No. 495, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . Case 21-CA-12988
June 17, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On February 21, 1975, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions, a supporting brief, and a brief
in support of the Administrative Law Judge's
Decision, in part.
Pursuant to the provisions of 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.
ORDER
(b) Whether the Company through Goodman violated
Section 8(a)(l) of the Act by threatening employees with
discharge, plant closure, and other reprisals because they
engaged in activities on behalf of the Union, and by
interrogating employees concerning their union activity
and the union activity of other employees.
2. Whether the Company violated Section 8(a)(3) and
(1) of the Act by discharging Ronald R. Grace and Steven
Jasper on June 28, 1974, because of their activities on
behalf of the Union.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and the Company.
Upon the entire record of the case and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a corporation engaged in the hauling of
heavy equipment by truck. It maintains its principal
facility and place of business at 11100 South Garfield
Avenue, South Gate, California. During 1973, which was
the calendar year preceding issuance of complaint, the
Company performed services valued in excess of $50,000
for customers located outside of California. The complaint
alleges, the answer admits, and I fmd that the Company is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
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 and
hereby orders that Respondent, Contractors Cargo
Co., Inc., South Gate, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard at Los Angeles, California, on January 6, 7,
and 8, 1975. The charge was filed on September 10, 1974,
by'Teamsters Automotive Workers Local No. 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, herein called the Union. The
complaint issued on November 7, 1974, alleging that
Contractors Cargo Co., Inc., herein called Respondent or
the Company, violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended.
IssuES
The primary issues are:
1. (a) Whether William Goodman is a supervisor or
agent of the Company.
218 NLRB No. 86
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company is a specialized motor vehicle carrier that
does work for the construction industry in six western
States. It does hauling for nuclear power plants, railroads,
and heavy construction projects. Much of its work requires
the use of specialized equipment to carry very large
prefabricated materials . Some of this specialized equip-
ment is not available on the market and has to be
constructed at the Company's own shop. The Company
maintains a facility in South Gate,, California, which
includes a welding shop where such fabricating work is
done. In this welding shop, different types of trailers are
put together which can carry the heavy and odd-shaped
loads. The facility also contains a repair shop where
maintenance and repair services are performed on trucks,
trailers, and other equipment. The employees in the
welding shop ordinarily do not work in the repair shop
except to the extent that welding work might be needed in
the maintenance and repair of the equipment that would
ordinarily be serviced in the repair shop. Also located at
the facility is a transportation department in which
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yardmen and drivers work and an office in which
administration and accounting services are performed. The
Company operates out of its ` South Gate facility, but, -in
addition, it maintains whatever field facilities are needed to
service particular jobs at distant locations.
On June 28, 1974, the Company laid off a number of
employees . The complaint alleges that two of the employ-
ees were discharged on that date in violation of Section
8(a)(3) and (1) of the Act. Prior to the layoff the Company
employed the following nonsupervisory employees: 4 or 5
in the repair shop (the fifth was William Goodman whose
status as a supervisor is in question); 6 in the welding shop;
14 yardmen or drivers in the transportation department (2
of whom were located out of'State at on-the-job facilities);
5 in administration (including salesmen); and - 2 in
accounting.
Since 1958 the Company has had successive contracts
with Local 224 of the Teamsters in Los Angeles covering
the Company's truckdrivers and yardmen. Relations
between the Company and that union have been amicable
in that there has never been a strike and only three
grievances have been filed. The Company is signatory to a
Western Master Freight Agreement. The Company also
has contractual relations with Teamsters Local 104 in
Phoenix, Arizona; Local 222 in Salt Lake City, Utah; and
Local 209 in Stockton, California. The Company does not
now and has never recognized any union as the representa-
tive of its employees in the welding or repair shops. ,
Immediately prior to the June 28 layoffs, the five persons
employed in the repair shop were: William Goodman, the
lead mechanic who the General Counsel contends is a
supervisor; John Pfeiffer and Carl Muckler, who are
mechanics ; Ronald Grace, who as a fireman repaired and
replaced tires ; and Steve Jasper, an unskilled worker who
cleaned up around the shop and the office, and who ran
errands when needed.
In early June 1974, Pfeiffer talked to Muckler, Grace,
and Jasper about the possibility of bringing in the Union.
Grace told Pfeiffer that if the other employees were for it
he would go along . There is no indication in the record of
what Jasper responded to Pfeiffer. Pfeiffer then contacted
the union steward for Teamsters Local 224, which
represented the yardmen and drivers. The shop steward got
in touch with the business agent for Teamsters Local 495
(the Union) which had jurisdiction, over shop employees.
On June 13, 1974, Pfeiffer, Muckler, Grace, and Jasper met
with representatives of the Union at a coffeehouse and all
four of them signed union authorization cards.
On June 17, 1974, Joseph Henderson, a special organizer
for the Union who had obtained the authorization cards,
called Mr. Fernstermacher, a representative of the Compa-
ny, on the telephone. Henderson said that he had
authorization cards for a majority of the Company's
1 Wheeler admitted in his testimony that he was told that they had all
signed cards.
2 There is substantial confusion as.to the scope of the unit claimed by the
Union. Henderson testified that the grievance which was filed related to
mechanics, firemen, and welders, which would include employees in both
the repair and the welding shop. The company representatives also
understood that the unit included the shops However, in a petition for an
election filed by the Company in Case 2I-RM-1670, the Company stated
that the unit involved was "automotive shop and truck-servicing." Gerald
Jerome Wheeler, the Company's president, credibly testified that in late
employees and asked for a meeting. Fernstermacher agreed
to meet on July 1, 1974. Sometime before the scheduled
meeting Fernstermacher called Henderson and told him
that the Company had taken authority out of his hands
and that the Company was not recognizing the Union.
At a company meeting on, about June 26, 1974,
Fernstermacher told Company President Wheeler of the
Union's demand for recognition., He also told Wheeler that
the Union had informed him that all the people in the shop
had signed cards.'
After the Company refused to recognize the Union, the
Union filed a grievance under a National Master Freight
Agreement. That agreement provides that if a Company is
signatory to the agreement and a Teamsters union signs a
majority, of the unrepresented employees in an unrepre-
sented unit that union is entitled to recognition. As the
Company was a signatory to the Western Master Freight
Agreement and not the National Master Freight Agree-
ment, the grievance committee did not act on the
grievance, but returned it as having been itnpropeily filed?
B. The Alleged Violation of Section 8(a)(1) of the
Act
1. The supervisory status of William Goodman
The complaint alleges that the Company, through its
supervisor and agent William Goodman, unlawfully
threatened and interrogated employees. The status of
Goodman as a supervisor or agent must therefore be
considered.
In a letter to the General Counsel, dated October 8, 1974,
counsel for the Company, admitted that Goodman is a
working foreman; that he is a supervisor within the
meaning of the Act; and that his recommendations are
effective in hiring and firing, even though he has no such
direct authority. Respondent's original answer is consistent
with that letter and admits that Goodman is a supervisor
within the meaning of,the Act. However, in an amendment
to its answer, the Respondent states that Goodman is not
now a supervisor within the meaning of the Act and that
Respondent has insufficient information as to whether or
not Goodman was a supervisor at the time of the alleged
unfair labor practice. In his opening statement, counsel for
the Company admitted that, for a 5- or 6-month period in
1973, the Company did not have a general manager and,
during that time, Goodman did exercise supervisory
responsibilities. Counsel went on to state that he is
uncertain how much of the supervisory responsibility that
Goodman had during that period carried over thereafter
and that, therefore, counsel did not know whether
Goodman is a supervisor or not.
June 1974 Fernstermacher reported to hum that the Union had demanded
recognition for the people in the shop and that the Union had told him that
they had all signed cards. During the grievance meetings for recognition,
reference was made to the shop, but Company Comptroller Jim Endresen
interpreted that to mean the combined welding and repair shop. Fred
Baker, the Company's operations manager, credibly testified that Fernster-
macher, in late June, told him that the Union claimed to have seven or eight
cards signed. However, Henderson, the Union's special organizer, did not
testify concerning any cards other than the four signed by the repair shop
employees.
CONTRACTORS CARGO CO., INC. 551
Goodman was hired as a lead mechanic in the spring of
1972. In August 1972 Howard Hatfield, the Company's
general manager, left the Company (he returned as chief
estimator in November 1973 and became general manager
once again in July 1974). When Hatfield left, Goodman
reported directly to Gerald Jerome Wheeler, the Compa-
ny's president. He was given authority for both the welding
and repair shop. Although thereafter his authority in the
welding shop was ended, he continued supervising the
work of the repair shop, at least until 'March 1973, when
Fred Baker was appointed operations manager. During
that period he both hired and discharged employees.3
When Baker became operations manager in March 1973,
Goodman was told that anything other than common daily
service work would have to be authorized by Baker. From
that time on, if Goodman thought another worker was
needed, he told Baker about it and Baker made the
decision whether someone was to be hired. However, there
is no indication in the record that anyone from manage-
ment ever told the employees under Goodman that
Goodman's authority was lessened. On January 8, 1974,
when Grace was hired, Goodman took Grace's application
and told Grace that he was hired. In the beginning of
January 1974, Operations Manager Baker told Muckler
that Goodman was in charge and that Muckier should do
what Goodman told him to. On several occasions, Baker
told Pfeiffer that Goodman was in charge. Grace, Muckler,
and Pfeiffer all credibly testified that Goodman gives them
their assignments . When an employee finishes one assign-
ment, he goes to Goodman for further assignments.
Goodman often tells employees to stop work on one job
and to work on another. Goodman checks their work, and
if necessary tells them to correct it. Goodman tells them
when they have to work overtime. When employees are
sick or need time off, they notify Goodman. All requests
for raises are made to Goodman. Goodman makes a
recommendation based on these requests, and when they
are approved a form is made out which is okayed by Baker
and signed by Goodman. The employees are paid on an
hourly basis and sign timecards, while Goodman is on
salary. On some of Goodman's payroll records he is listed
as shop supervisor. Although the. time Goodman spends
working with his tools as a mechanic varies from day to
day, sometimes it is as little as 2 hours a day.
Company President Wheeler testified that Goodman did
not have authority to hire,, to transfer people from the shop
to other locations, to suspend, to lay off, to recall, to
promote, to discharge, to grant wage increases, to disci-
pline, to issue warning notices, or to give time off. He also
testified that Goodman does have the responsibility to see
that the work in the repair shop is done properly and that
he does have authority to tell people what to work on. He
averred that decisions as to priority are made by Baker. In
3 In October 1972 Goodman negotiated with and lured Pfeiffer. A few
weeks later, Goodman admittedly discharged another employee.
4 'Baker credibly testified that this conversation took place in
"approximately" April 1974. Goodman credibly averred it was 2 or 3
months before the June 28, 1974, layoffs. Thus it appears that Grace and
Jasper were considered for layoff well before the, union activity began in
early June 1974.
S ,Even if Goodman were not found to be a supervisor within the
meaning of the Act, he would still be an agent whose actions would bind
spite of Wheeler's testimony, it appears that management
did look to Goodman for recommendations concerning
such matters as time worked and layoffs, and Goodman's
recommendations were followed. Thus, in April 1974,
when the Company was considering a layoff, Operations
Manager Baker discussed the matter with Goodman and
asked Goodman who could be laid off with the least loss of
productivity. Goodman named Jasper and Grace,4 the
employees who were subsequently laid off. Goodman also
suggested that the Company cut the workweek rather than
lay off employees. The Company did, in fact, reduce the
workweek. From the Company's point of view, the
reduction in the workweek did not solve the problem, so
the two men recommended for layoff by Goodman were
laid off.
Section 2(11) of the Act defines "supervisor" as follows:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires
the use of independent judgment.
As the indicia of supervisory status contained in Section
2(11) of the Act are set forth disjunctively, a person must
be found to be a supervisor if his duties meet any of those
indicia. NLRB. v. Budd Mfg. Co., 169 F.2d 571 (C.A. 6,
1948). Goodman assigns all work in the repair shop,
transfers employees from one job to another, and tells
them when they are to work overtime. Operations Manager
Baker has told the employees that Goodman is in charge
and they are to do what he says. These facts, as well as the
others set forth above, establish that Goodman exercises
independent judgment in responsibly directing the employ-
ees in the repair shop, and that that direction is not merely
routine or clerical in nature. In addition, the facts set forth
above establish that Goodman effectively recommends a
number of things concerning the employees' working
conditions, including matters relating to raises, hours
worked, and layoffs. It follows and I find that Goodman is
a supervisor within the meaning of Section 2(11) of the
ACt.5
2. The activities of Goodman
As set forth above, the organizational activity began in
early June 1974. Goodman acknowledged in his testimony
that he heard a rumor from a truckdriver that the Union
was active. On one occasion prior to the time the
authorization cards were signed, he commented to Grace
Respondent. At one time Goodman was an admitted supervisor. If the
Company did thereafter limit his supervisory authority, there is no
indication that the employees were so informed. To the contrary, the
employees were told that Goodman was in charge . Thus, at the very least,
the Company clothed Goodman with the apparent authority to act on its
behalf. It is clear that the employees considered Goodman their supervisor
(indeed he had hired some of them) and their behefwas reasonably based
on the actions of the Company in holding him out to be a supervisor.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, if the Company didn' t come across with a raise, he
(Goodman) was going to help them organize the Union.
On another occasion, about a week before the cards were
signed, Goodman commented to Muckler that they weren't
receiving union scale and that if they were in a union they
would be receiving more pay. However, after the cards
were signed, Goodman took a very different approach. He
acknowledged in his testimony that he individually asked
the men if they went to the Union. He also acknowledged
that he asked Pfeiffer whether Pfeiffer had contacted the
Union and why they had done it. Grace, Muckler, and
Pfeiffer testified that they had a number of conversations
with Goodman (the details of which are set forth below) in
which Goodman not only interrogated them but threat-
ened them with plant closure or discharge. Goodman
testified that he never said anything about firing or
discipline and he denied or denied recalling other details of
the meetings with employees testified to by those employ-
ees. Where Goodman's testimony contradicts that of
Grace, Muckler, and Pfeiffer,6 I discredit Goodman. The
testimony of the three employees was in large measure
mutually corroborative and was fully believable. I do not
believe that Goodman, who is still a supervisor "for the
Company, was fully candid.
About a week after the employees signed the authoriza-
tion cards , Goodman spoke to each of them individually.
He went to Grace's home and in the presence of Grace's
wife Goodman said, "I hear you guys decided to go
union." Grace replied, "That's right." Goodman then said
that none of the employees were qualified for union scale
except for the tireman and that he (Goodman) would
probably have to let some of the employees go. Goodman
also said that they were just making the shop nice for
someone else, that they all should start looking for work
elsewhere, and that he was doing so already. Goodman
told Grace that he had worked at other plants where the
union came in and that the work was either farmed out or
everyone was fired.
About the same date Goodman called Muckler into the
company office and asked if Muckier was going to go
ahead and go through with joining the Union. Muckier
said that he was. Goodman then said that Muckler was not
a qualified mechanic, that if the Company decided to keep
him he would have to be trained, and that he could be
terminated.
Also on or about the same date Goodman spoke to
Pfeiffer after calling Pfeiffer into his office. Goodman
asked Pfeiffer whether Pfeiffer had signed up with the
Union and Pfeiffer replied that he had. Goodman then
asked how many of the employees signed and Goodman
replied that they all had. Goodman replied that they had
done it now ; that the Company would not have a union;
that they had caused their own problems and that he
(Goodman) was looking for work and that Pfeiffer should
also start looking for work. Pfeiffer asked Goodman why
Goodman was looking for work and Goodman replied that
the employees were his men and the Company would think
that he had something to do with the union activity, or at
least knew about it prior to their being notified. Pfeiffer
then said that he would tell the Company that Goodman
knew nothing about it until the Company was notified by
the union official.
About a week after the employees signed the cards,
Goodman spoke to them as a group in addition to speaking
to them individually. He repeated that he thought they had
better start looking for work. According to the credited
testimony of Pfeiffer, who impressed me as having a
detailed recollection of the events, Goodman said, that if
the Union got in the Company would close down the shop
and there would be no work, and then went on to say that
if the Company did "not close the shop it would lay them
off to get rid of them. Goodman also added that they were
making it better for someone else but not themselves, and
that he felt the Company would clean house and get a
whole new crew.?
A few days later, Goodman called Grace to report for
work at 1:30 a.m. to repair a tire. When Grace got to the
plant, Goodman and Grace fixed the tire together.
Goodman asked Grace if he knew how long it would take
the Union to negotiate a contract or to close the place
down. Goodman then said that none of the employees
were qualified for union scale except for the tireman and
that if the Union came in the company president would
more than likely close the place down and have the work
done on the outside. Goodman said that they had better all
start looking for work elsewhere and that he had already
started.
Goodman had another conversation with Pfeiffer on or
about June 24, 1974. Goodman asked Pfeiffer if he had
been looking for work. Pfeiffer replied that he had not and
that he was waiting to see what the union people would do.
Goodman then said that he (Goodman) had been looking
and had found a place that needed a shop foreman and
another mechanic. Goodman asked whether Pfeiffer would
be interested in the mechanic's job if he (Goodman) took
the other job. Pfeiffer replied that he would be interested if
he were out of work but that he wanted to wait to find out
what the union situation was and that he would stick to his
job.
During the week prior to the June 28 layoff, Goodman
again asked Pfeiffer whether Pfeiffer was looking for a job.
Pfeiffer replied that he was not and he felt that the Union
would do some good. Goodman said that Pfeiffer should
look for something and, in his opinion, heads would roll by
the end of the week.
Grace and Jasper were laid off at the end of the workday
on Friday, June 28, 1974. They received their termination
checks at the same time that the other employees received
their pay. Goodman handed Grace his paycheck and said,
"I knew it was going to happen; it's just a matter of time,
so get your stuff together and go on home."
About a week after the June 28 layoff, Pfeiffer com-
plained to Goodman that there was more work than they
could handle. He asked Goodman whether the laid-off
6 It is noted that Muckler and Pfeiffer are still employed by the would most likely be terminated for signing with the Union. According to
Company, though Pfeiffer as of the date of the hearing was on disability Muckler, Goodman asked him at the meeting if he had signed up for the
leave. Union and it was in the individual conversation later that day that
7 Grace recalled the remark about looking for work elsewhere , but he did Goodman asked him whether he was going to go ahead and go through with
not testify beyond that. Muckler recalled that Goodman told them they joining the Union.
CONTRACTORS CARGO CO., INC. 553
employees would be called back or someone else would
help with the work. Goodman said that he had told them
that would happen when they first signed cards and that as
far as he knew there would be no replacements and no
callbacks . Pfeiffer said that he had been told that
employees couldn 't be laid off for union activities.
Goodman replied that the Company would be as chicken
as it had to be to keep the Union out and that , as far as the
Company was concerned , what it could get away with was
legal.
3. Conclusions as to the 8 (a)(1) violations
The complaint alleges that the Company, through
Goodman, violated Section 8(a)(1) of the Act by threaten-
ing employees with discharge , plant closure , and other
reprisals because they engaged in union activity. It also
alleges that the Company, through Goodman, unlawfully
interrogated employees concerning their own and other
employees' union activities . The credited evidence set forth
above establishes that Goodman was a supervisor and
agent of the Company; that, during the last part of June
1974 on a number of occasions , Goodman threatened
employees with discharge and plant closure because they
engaged in union activities ; and that during the same time
period Goodman interrogated employees concerning their
own and other employees' union activities. Goodman's
remarks were not protected free speech but were impermis-
sible threats of economic reprisal to be taken solely on the
Company's own volition. As such, they interfered with the
employees' rights guaranteed in Section 7 of the Act and
violated Section 8(a)(1) of the Act. N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 617-620 (1969); Bancroft
Manufacturing Company, Inc., 189 NLRB 619 (1971).
Particularly in the light of Goodman's unlawful threats, his
interrogation of employees as set forth above was coercive
and also interfered with Section 7 rights in violation of
Section 8(a)(1). Meehan Truck Sales, Inc., 201 NLRB 780
(1973); Struksnes Construction Co., Inc., 165 NLRB 1062
(1967); Lorraine Urbauer d/b/a Kimmel's Shop Rite, 213
NLRB No. 69 (1974).
C. The Alleged Violation of Section 8(a)(3) of the
Act
1. The General Counsel 's case and Respondent's
defense
As set forth above , the General Counsel established that
Grace and Jasper engaged in protected union activity (the
signing of an authorization card); that the Company knew
of that protected activity (Company President Wheeler
admitted that he had been told at a meeting a few days
before the layoff that all the employees in the repair shop
had signed cards); that the Company expressed its animus
against the Union through Supervisor Goodman's unlawful
interrogation of and threats to employees ; that shortly
after obtaining knowledge of union activities the layoffs
were put into effect ; and that, a week after the layoff,
Supervisor Goodman in effect admitted to Pfeiffer that
Grace and Jasper had been laid off because of the union
activity. Respondent's defense must be weighed against the
General Counsel's strongprimafacie case.
All of the evidence relating to unlawful threats and
coercion was keyed to the activities of Goodman. There is
no evidence that the Company violated Section 8(a)(1) of
the Act through the agency of any other supervisor.
Although Goodman is a supervisor , there is no reason to
believe that he participated in or even had knowledge of
the Company's top-level decisions . He was a lead mechanic
who had supervisory duties with regard to four employees
who worked under him . He was not in a position to make
decisions in connection with the overall economic condi-
tion the Company found itself in or with regard to the
companywide layoffs that affected his department only
peripherally. Both Company President Wheeler and
General Manager Hatfield credibly testified that they
never spoke to Goodman about the Union. There is no
evidence in the record to indicate that Goodman was
relaying information that he had heard from higher
authorities when he spoke to the employees . Goodman was
in a rather unique position . To a large measure he
identified himself with the rank-and-file employees. He
told Pfeiffer that he (Goodman) expected to be fired
because of the employees' union activities . In short, I
believe that Goodman in his dealings with the employees
was expressing his own fear as to what the Company would
do because of the union activity. Goodman's statements to
the employees were coercive from the point of view of the
employees and, since Goodman was a supervisor, the
Company is responsible for and must remedy them.
However, in the context in which the statements were
made and in view of the other matters set forth below, I do
not believe that Goodman's statements to employees
establish the real reason (as distinguished from what
Goodman believed the reason to be) for the layoffs.
The only evidence of union animus is keyed to
Goodman. A very substantial portion of the Company's
operation is already unionized . The 14 yardmen or drivers
are covered by a Teamsters contract . The Company and
that union appear to have had amicable relations over the
years.
Goodman did make a recommendation as to the two
employees who should be laid off from the repair shop. In
April 1974, Baker spoke to Goodman about the possibility
of layoffs and asked who would be least missed . Goodman
urged that no one be laid off and that the workweek be
reduced so that everyone could work. When Baker asked
for the names of potential layoffs, Goodman mentioned
Jasper and Grace. They were the employees who had the
least seniority in the repair shop and also those who had
the least skills . Jasper was an unskilled worker who had
been hired largely as a favor to Jasper 's father. Grace was a
tireman and very little training was needed for an
employee to change and repair tires . Goodman mentioned
Grace and Jasper as candidates for layoff well before the
union activity began.
The two layoffs in the repair shop on June 28, 1974,
cannot be viewed in isolation . The economic condition of
the Company, the overall operation of the Company, and
the pattern of layoffs in the other departments that were
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already unionized or in which recognition was not being
sought must be considered.
Most of the Company's business8 is based on long-term
contracts with construction companies that run anywhere
from 2 months to 4 years. The Company also does work on
short-term contracts, some of which are for the moving of
military equipment such as tanks. In early 1974 work on
three long-term contracts began to near completion. They
involved a power plant job in Page, Arizona, which at the
time of the hearing was about 98 percent complete; work
on a bridge site in Sonora, California; and delivery of steel
on a powerline project known as the Tower job. The Tower
job was scheduled to end in April or May, but it dragged
out until about the first of June. The Company was unable
to find new contracts to replace the ones that it was losing.
In June 1974 the Company found some additional short-
term work in the moving of tanks under a military
contract.
When it became apparent in early 1974 that the
Company was going to be losing business, Wheeler began
to hire new salesmen . One was hired in early 1974 and
another in May, or June 1974. In addition, Wheeler
delegated more responsibility to General Manager Hatfield
and Operations Manager Baker so that he could spend
more of his time with sales problems.
In April or May 1974 Wheeler spoke to Hatfield and
Baker about the fact that the business level was going to
decrease drastically. He pointed out that they did not have
long-term contracts to replace the ones they were losing
and spoke of making adjustments in the level of personnel
and business . It was about this time that Baker spoke to
Goodman about who was least productive in the repair
shop and Goodman named Grace and Jasper. All this took
place before any union activity began.
Wheeler credibly testified that in early 1974 he had
expected that there would be a major layoff in April or
May but that the Tower job continued longer than
anticipated and there was another large influx of military
orders so that the layoff actually came a month or two
later.
Beginning in early 1974 Wheeler had about a dozen
conversations with Baker concerning cutting down opera-
tions. About June 20, 1974, Wheeler met with Baker and
Hatfield and had a general discussion concerning the
layoffs. On June 26, 1974, Wheeler met with Hatfield,
Baker, and Comptroller Endresen. Goodman was not
present at that or any other of the management meetings.
At the meeting they discussed the names of people to be
laid off at the end of the workweek on June 28, 1974. Two
of those laid off were Grace and Jasper.
The Company reduced its work force both before and
after the June 28 layoff. During April, May, and June
(before the June 26 meeting) there were seven employees
laid off and one terminated at the South Gate facility and
three more laid off at different locations.9 None of those
8 The findings set forth below which relate to the background for the
layoffs are based on the credited testimony of wheeler, Hatfield, Baker, and
Endresen.
9 Six of the layoffs from South Gate and all three from the field took
place in April or May 1974. The union activity did not begin until June
1974.
10 Billings in 1972 were $1,641,370, with $816,745 in the first 6 months
returned to work and none of them has been replaced. In
July and August 1974 there were three layoffs. Two of
those laid-off employees have returned to work but one of
them was not working at the time of the hearing. One had
been replaced.
Of the 12 employees laid off as the result of the June 26
meeting, 6 subsequently returned to work. Of the six, five
were still with the Company at the time of the hearing.
Grace was recalled to work on December 24, 1974, but he
did not return.
The 12 employees laid off on June 28 came from all
departments. Two were laid off from the repair shop
(Grace and Jasper). Neither has returned to work even
though Grace has been offered his job back. No replace-
ments have been hired for either Grace or Jasper, although
another employee who drives a truck sometimes assisted in
the repair shop when there was no driving work for him to
do. The tire work that Grace did and the shop cleanup
work that Jasper did are now being performed by the other
employees in the repair shop. The cleanup work that Jasper
did in the office is now performed by a cleaning service for
$100 per month. Five employees were laid off from the
welding shop of whom four subsequently returned. Three
of those who returned were still working at the time of the
hearing. The others have not been replaced. Three drivers
or yardmen were laid off and one has returned and is still
working. The others have not been replaced. Two employ-
ees were laid off from the office and one has returned.
There have been three new hires since June 28, 1974, but
none of those have been in the repair shop. No work which
had been done in the repair shop prior to the June 28 layoff
has been contracted out to be done elsewhere. Though
Goodman and Pfeiffer have both at various times been
away from work on disability, there has been no substan-
tial backlog or delay of work in the repair shop.
The Company's financial records support its contention
that there was a loss of business after June 1974 when
compared to the business done in the first 6 months of 1974
or the last 6 months of 1973. However, no overall pattern is
discernible in that the Company had more billings in 1974
than it did in 1972.10 The Company's recap of monthly
sales shows an erratic pattern from which little can be
gained. However, the figures for May 1974 showed
$127,429 which was the lowest figure up to that time for
1974. In June it rose to $206,599 but in July dropped to
$128,655 and in August to a new low of $108,258.
Respondent's records show that the man-hours worked
in the repair department dropped very substantially after
the June 28 layoff. However, Hatfield credibly testified
that the repair shop was not only up to date with its work
but that it shut down on days when it ordinarily would
have been open prior to the June 28 layoff. Hatfield
credibly testified that one explanation for the reduced
work of the repair shop was that there was less equipment
and that equipment received less mileage . Four or five
and $824,625 in the second. Billings for 1973 were $1,940,904, with $848,925
in the first 6 months and $1,091,979 in the second. The billings for 1974
were $1 ,846,714, with $985,017 for the first 6 months and $861 ,697 for the
second. (At the time of the trial, the final figures for December 1974 were
not available and the figure used includes an approximation given by
Comptroller Endresen of the December 1974 billings of $243,000.)
CONTRACTORS CARGO CO., INC.
months prior to the trial, the Company had 40 to 50
trailers. At that time it sold 11 of them. At the time of the
hearing approximately 40 percent of the trailers that the
Company still had were not used each month. In early
1974 when the Tower job was in full operation, 99 percent
of the Company's trailers were used and in addition there
were trailers being rented.
2. Conclusions as to the 8(a)(3) violations
In order to establish his 8(a)(3) case, General Counsel
must prove by a preponderance of the credible evidence
that Grace and Jasper were discharged because of their
union activity. The evidence indicates that Goodman
thought the layoffs in his shop were caused by the union
activity and his statements to the employees were consist-
ent with those thoughts. However, the evidence establishes
that Goodman's estimate of the situation was simply
wrong . The Company was concerned by the loss of
contracts and potential loss of income well before any
union activity. Also, before there was any union activity,
there had been high-level discussions about layoffs and
Grace and Jasper's names had been mentioned in
connection with those layoffs. Ultimately, when the June
28 layoffs occurred, only 2 of the 12 layoffs were in the
repair shop. The Company's entire operation was reduced
in size . The two employees selected for layoff from the
repair shop had been decided upon even before the union
activity. Grace and Jasper were the least skilled and the
least senior employees in the repair shop. When they did
engage in union activity, it was limited to the signing of
cards. Pfeiffer, the key union man, was not laid off. Other
employees were laid off from different departments both
before and after the June 28 layoff. It is difficult to believe
that Respondent rearranged its total operation to the
extent that it did for the purpose of laying off Grace and
Jasper. This is particularly true where the Company
already had amicable dealings with a Teamsters union and
a contract covering its yard and driver employees. Nine of
the layoffs took place before the union activity began in
the repair shop. The fact that neither Grace nor Jasper has
been replaced in the repair shop (except to the limited
extent that a driver has done some repair work when not
driving) and that repair shop work has not been contracted
out indicates that Grace and Jasper were not needed to
perform the work that the Company had. For these reasons
and based on the other facts set forth above, I conclude
that the General Counsel has not established by a
preponderance of the credible evidence that Grace and
Jasper were discharged because of their union activity. I
shall therefore recommend that the sections of the
complaint that allege that Respondent violated Section
8(a)(3) of the Act be dismissed.
11 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
555
The activities of the Company set forth in section III,
above, occurring in connection with the operation of the
Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
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
meaning of Section 2(5) of the Act.
3. By threatening employees with discharge and plant
closure because they engaged in union activities and by
coercively interrogating employees concerning their own
and other employees union activities, the Company
interfered with, restrained, and coerced their employees in
the exercise of their rights guaranteed to them by Section 7
of the Act, in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Except as set forth above, the General Counsel has
not established by a preponderance of the credible
evidence that the Company violated the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 11
Respondent, Contractors Cargo Co., Inc., South Gate,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with discharge or plant
closure because they engage in activities on behalf of
Teamsters Automotive Workers Local No. 495, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, or any other union.
(b) Coercively interrogating employees concerning their
own or other employees' union activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
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.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its South Gate, California, facility, copies of
the attached notice marked "Appendix." 12 Copies of said
notice, on forms provided by the Regional Director for
Region 21 , after being duly signed by Respondent'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. ,
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
12 In the event that the Board's 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 Pursuant
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
After a hearing at which all sides had a chance to give
evidence, it has been found that we violated the National
Labor Relations Act and we have been ordered to post this
notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for, collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights.
WE WILL NOT threaten employees with discharge of
plant closure because they engage in activities on
behalf of Teamsters Automotive Workers Local No.
495, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, or any
other union.
WE WILL NOT coercively interrogate employees
concerning their own or other employees' union
activities.
CONTRACTORS CARGO Co.,
INC.