D'Arcy Co., Inc.

National Labor Relations Board - Board Decisions

May 15, 1956

115 N.L.R.B. 1320 (N.L.R.B. 1956)

1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the saw filer, the power tool serviceman, and the stockroom clerk, but
excluding leadmen , office clerical employees , professional employees,
the over-the-road truckdriver, the office maid, watchmen, guards, and
all supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
[Text of Direction of Election omitted from publication.]
D'Arcy Company, Inc. and Chauffeurs, Teamsters & Helpers
Local Union 633, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , AFL-CIO.'
Case No. 1-CA-1981. May 15,1956
DECISION AND ORDER
On December 28, 1955, Trial Examiner James A. Corcoran issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, in violation of Section 8 (a). (1) and (3) of the Act,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a supporting brief; the General Coun-
sel filed a brief in support of the Intermediate Report and a motion
to strike the Respondent's exceptions?
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, D'Arcy Com-
1 The AFL and CIO having merged, we show the affiliation of the Union accordingly.
I The motion was based on an asserted lack of specificity in the Respondent's excep-
tions. While it is true that the exceptions were very broad, they were accompanied by a
brief which made the Respondent's position clear. Accordingly, the General Counsel's
motion is denied.
8 The finding of the Trial Examiner that it is "the effect, not motivation" which deter-
mines whether an unfair labor practice has.been committed must, of course, be limited to
violations of Section 8 (a) (1). Motive is an essential element in a violation of Section
8 (a) (3). It is clear from the Intermediate Report that the Trial Examiner has cor-
rectly applied this rule of law in finding violations of Section 8 (a) (3).
115 NLRB No. 215.
D'ARCY COMPANY, INC. 1321
pany, Inc., of Dover, New Hampshire, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Threatening employees with reduced working hours or loss
of employment or other economic reprisals if they join or assist any
labor organizations.
(b) Discharging employees, or discriminating in any other manner
in regard to their hire and tenure of employment or any term or
condition of employment, in order to discourage membership in a
labor organization.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Chauffeurs, Teamsters & Help-
ers Local Union 633, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL-CIO, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment as au-
thorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act.
(a) Make whole James A. Knowlton, Harold Pike, Harry R.
Cassell, Norman A. Jenness, and George Jacques for any loss of pay
each may have suffered by reason of the discrimination against him, in
the manner set forth in the Intermediate Report in the section entitled
"The Remedy."
(b) Upon request make available to the National Labor Relations
Board or its agents, for examination and copying, all payroll records,
social-security payment records, timecards, personnel records and
reports, and all other records necessary for a determination of the
amounts of back pay due under the terms of this Order.
(c) Post at its Dover, New Hampshire, plant and warehouse, copies
of the notice attached to the Intermediate Report marked "Ap-
pendix." 4 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by the
Respondent, be posted by it immediately upon receipt thereof and
maintained for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
4 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
1322 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge and amended charge having been filed by Chauffeurs , Teamsters &
Helpers Local Union 633, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL-CIO, hereinafter called the Union,
against D 'Arcy Company, Inc., herein referred to as the Respondent , the General
Counsel of the National Labor Relations Board (referred to herein as the General
Counsel and Board , respectively), on September 23, 1955, and on September 30,
1955, respectively , by the Regional Director for the First Region ( Boston, Massa-
chusetts ), issued and served upon the Respondent a complaint and amended com-
plaint , respectively , together'with notices of hearing thereon . The complaint alleged
that the Respondent had engaged in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat . 136, as amended , herein called the Act.
With respect to the unfair labor practices the complaint alleged in material-sub-
stance that the Respondent : ( 1) Beginning and since May 27, 1955, had provided
truckdrivers George Jacques, Harry R. Cassell, James A. Knowlton , and Harold
Pike with less employment than normally received with resultant loss of pay, and
similarly as to driver Norman A. Jenness, for the reason that such employees joined
or assisted the Union or engaged in other concerted activities in restraint of their
rights under Section 7 and in violation of Section 8 (a) (1) and (3) of the Act;
(2) did constructively discharge said Jenness by reason of such procedure on August
12, 1955,1 thereby violating Section 8 (a) (3); (3 ) since August 2, 1955, in violation
of Section 8 (a) (5), had refused to bargain collectively with the aforesaid Union
as the exclusive representative for the truckdrivers in an appropriate unit as selected
by the majority thereof in an election held on July 8, 1955, and after said Union had
been duly certified by the Board as such collective-bargaining representative on
July 18, 1955; 2 ( 4) in meetings on March 1 , 1955, and May 11, 1955, respectively,
which the truckdrivers were directed to attend , in an address by Donald D'Arcy,
treasurer,3 he had threatened these employees with diminution of hours of work and
pay if they assisted or joined the Union or adhered to affiliation with it, all in violation
of Section 8 (a) (1).
The Respondent in its answer and amended answer denied generally all material
allegations of the complaint , as amended , imputing to it the commission of any un-
fair labor practices as alleged , and incorporating in and filing with the amended
answer a copy of such recorded speech of May 11, allegedly being of the same sub-
stance and extent as the unrecorded talk of March 1, 1955.
Pursuant to notice , a hearing was held on October 25 and 26 , 1955, at Dover,
New Hampshire, before James A. Corcoran, the Trial Examiner duly designated
to hold such hearing by the Chief Trial Examiner . All parties were represented
and participated in the hearing. Full opportunity to produce, to examine and
cross-examine witnesses , and to introduce evidence bearing on the issues was
afforded to ' all parties . At close of testimony , a motion to conform the pleadings
to the proof with regard to minor variances was granted.4 Opportunity to present
1 Complaint amended verbally by consent during hearing to read July 29, 1955
2 This contention was eliminated from consideration of the Trial Examiner, as the
'parties stipulated at the hearing that the question involved was disposed of by the
,Respondent having agreed to bargain with the Union as such certified representative, and
that settlement of such part of complaint had been approved in a Board order dated
October 17 , 1955 , and subsequent court decree thereon It was further stipulated that
,such allegation however would not be stricken from the complaint.
2 Erroneously termed president of Company.
' A verbal amendment of the complaint as to it material date , during the course of the
hearing, has been previously pointed out . Motions by General Counsel and Respondent
D'ARCY COMPANY, INC.' 1323
oral argument was waived by all the parties . The General Counsel and Respondent
have filed briefs which have been read and considered.5
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
D'Arcy Company, Inc., a New Hampshire corporation , having its principal office
and place of business in Dover , New Hampshire , is engaged in the manufacture,
sale, and distribution of wood and metal millwork and related products. The com-
plaint alleges and the answer admits that the Respondent is engaged in interstate
commerce. The parties stipulated at the hearing that the Respondent has purchased
large quantities of raw material in States other than New Hampshire and which
have been transported to it, in New Hampshire, from such points, and has sold and
;transported in interstate commerce its finished wood and metal products in an
amount in excess of $50,000, to points in the United States other than in the State
of New Hampshire. I find that the Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters & Helpers Local Union 633, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, admits
persons employed by the Respondent to membership and is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General
The business of the Respondent was started in 1918 by the father of the present
officers and operators. Apparently it grew slowly and additions were made to the
wood frame building plant property as expansions occurred. The father died in
1937 and the operation of the business since has been in hands of his sons. From
1937 'to date the volume of business done by the Respondent has multiplied 10 to
12 times, but apparently without fully having any proper adjustment of the physical
plant property to keep pace with it, which in itself has produced management prob-
lems. The nature of the very competitive mill working business has also changed
materially in recent years. Customers, such as lumberyards, no longer carry large
inventories , throwing the burden largely back on the manufacturer and distributor,
with consequent delivery and transportation problems, and making for keener
competition among sellers . New production lines, such as aluminum metal win-
dows, have recently contributed largely to, the increase in volume of the business
handled.
The Respondent operates two production plants, the one at Dover, and another
at North Berwick, Maine (about 12 miles away and not directly involved in this
complaint), which are not in competition with each other. All shipping is done
from the Dover plant, which employs a total of approximately 60 employees, of
'whom 6 were truckdrivers engaged in trucking between the 2 plants, miscellaneous
or local trucking, and over-the-road deliveries of finished products to customers in
New Hampshire and neighboring States. Regular body trucks were used for the
latter work and a tractor-trailer regularly used in the work between plants, with
only occasional use in customer delivery. It had been the practice of the Respond-
ent for many years to supply these drivers with work up to 5 p. m. of each workday,
,in order to enable them to earn a full week's wages, whether sufficient driving assign-
ments were available- or not on any particular day by assigning the driver to per-
form a type of "made" work in some part of the organization activity.6 On such other
work -the truckdriver received his regular driver rate of pay, not that of the assigned
respectively received after close of the hearing to correct the transcript in seven specified
instances, copies being served upon the parties and no objections being filed, have been
approved , except as to page 20 , line 4 , in Respondent 's motion , which is clearly in error.
r• •,6 Joint, application for extension of time to November 28, 1955, to file such briefs was
granted.
9 The General Counsel contends this was the practice for from 6 to 16 -years ; the
Respondent admits its existence for at least 3 years. In any event, it appears and I find,
,that it has been in existence for a substantial enough length of time to accept-it as a
customary and regular practice and an integral part of the conditions of employment.
1324 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
work. (Lower in most instances.) 7 The management apparently prided itself on its
good relations with employees and customers, and insists it usually made every effort to
avoid any layoff of workers, even to the extent of manufacturing for inventory or
stock in the usual slack winter months. Several years previously an attempt to
organize the employees of the Respondent by the CIO was not successful.
B. The issues
Two distinct questions are presented relative to the diminution of the hours of
work and wages of the truckdrivers subsequent to May 26, 1955, and the alleged
constructive discharge of driver Norman Jenness on July 29, 1955. Did the Respond-
ent cause the diminution of the hours of work (and consequently wages earned)
because of purely economic motives, or was the noticeable drop in hours worked
and wages earned due to the fact of the majority of the truckdrivers having sup-
ported and embraced membership in the Union? The Respondent contends such
reductions were the result of changes in methods of delivery and shipping room
techniques motivated by sound business considerations. The position of the General
Counsel is that but for their union activities, their hours of work would not have
been so reduced. It is conceded by the parties that the resolution-of the second-
question, as to the alleged discharge of Jenness, will necessarily follow the deter-
mination of the prior question. If the Respondent is correct, it will be only a matter
of an ordinary quitting of the job by a worker, otherwise if the finding upholds the
contention of the General Counsel as to discriminatory action by the Respondent in
relation to hours and wages, the claim of constructive discharge of Jenness should,
be sustained.
A tabular chronology of events, presented at the outset, before further considera-
tion and discussion of matters involved, will probably be useful and help in pointing
up the clashing contentions advanced.
Late February 1955 Truckdrivers met in secluded portion of employer
(few days prior to premises to discuss union representation (one plant em-
March 1, 1955) ployee present whose wife worked in company office).
March 1, 1955 Drivers directed by superintendent to attend meeting in
office of D. D'Arcy, treasurer of Company and general
manager of Dover plant. Discussion based on "grape-
vine" knowledge of employer of union activity and of
previous meeting. Alleged statements of D'Arcy as to
attitude toward Union.
Early April 1955 Date established by D'Arcy in his testimony as time of
Respondent's determination to lease additional tractors
and drivers.
April 17, 1955 Five truckdrivers join the Union. (Allyson did not do
so.)
May 2, 1955 Union representation petition filed.
May 7, 1955 Drivers Pike and Jenness terminated in their preformance
of regular private work duties for D. D'Arcy at his home;
allegedly Pike being solicited by D'Arcy to talk to other
union members, and after refusal being told by D'Arcy
that he could resume work when he turned in his union
card.
May 11, 1955 D. D'Arcy called meeting in his office with truckdrivers-
proceedings tape recorded-further exposition re position
of drivers if Union came in and discussion of grievances
of drivers presented as to shipping room conditions.
May 14-15, 1955 Approximate date stated by D'Arcy in his testimony as to
when Respondent decided to curtail all previous shipping
room and loading activities of drivers.
May 23 , 1955 National Labor Relations Board hearing in representation
petition (1-RC-4046). (D. D'Arcy testimony therein
reviewed.)
7 Assignments on such "made " work included platform loading and unloading trucks,
hauling rubbish , work in the shipping department and warehouse , work in garage and
shop , washing cars , and occasional sanding and painting of trucks.
DARCY COMPANY, INC. 1325
May 26, 1955 Abolition by Respondent of previous practice of Respond-
ent furnishing shipping room and other "made" work to
truckdrivers to complete full day's work, when truckdriv-
ing work ceased before 5 p. m.
June 3, 1955 Respondent gave flat wage increase. (Stated not to be in
the offing under previous conditions at meeting of May
11.)
June, 1955 Three additional used tractor boxes purchased by Re-
spondent.
July 7, 1955 Two additional used tractor boxes purchased by Re-
spondent.
July 8, 1955 National Labor Relations Board election held (Union
designated by 5 to 1 vote).
July 11, 1955 Respondent signed contract with Newhall for leasing two
tractors with drivers.
July 18, 1955 Union certified as bargaining representative for truckdriv-
ers by National Labor Relations Board.
July 18, 1955 First of new tractor-trailers put on road with newly en-
gaged drivers.
July 29, 1955 Alleged constructive discharge of Jenness (told Respond-
ent on leaving for other work that reduced hours of work
did not permit him to make enough to support family).
Aug. 2, 1955 Respondent refused to bargain with certified Union after
request.
Sept. 1955 Respondent resumed in part giving nondriving work as-
signments to truckdrivers.
Oct. 14, 1955 Settlement stipulation re Section 8 (a) (5) allegations of
complaint-Respondent agreed to recognize and bargain
with Union-(Board order and court order issued).
Oct. 14, 1955' Respondent offered reinstatement to Jenness.
Oct. 28, 1955 Jenness to report for work.
C. The testimony and conclusions
All the drivers, except Allyson, testified, as did D. D'Arcy, appearing as a witness
for the General Counsel under section 43-b (Federal Rules of Practice) and also be-
ing called for the Respondent. The testimony of the drivers clearly indicates that long
prior to March 1, 1955, an unsatisfactory situation leading to friction (and as later
predicted possible "blow up"), existed in the relations between the truckdrivers and
the shipping room force, based largely on resentment against the head shipper in,
the handling of matters, complaints, and the drivers .8
As soon as D'Arcy learned of the union proclivities of the drivers, he brought
the drivers into the meeting of March 1, 1955. Being unrecorded, there is some
discrepancy in the testimony as to what he did say to them. Clearly he was angry,
or at least disturbed, at the union desires of the men and their gathering together
to discuss it; as he stated to them, the place to discuss any matters was with him in
the office. There is no question, from the testimony, that his talking was entirely in
relation to the union activities of the men and any possible introduction of the Union
as a factor in the conduct of his business. Quite irrespective of how it was stated,
he emphatically indicated to the men his opposition to the Union. From the
testimony of Knowlton, Cassell, and Jacques, I am persuaded that his declarations
of procedure if the Union were adhered to by the men, regarding the intent to
sell the company equipment and change over to contract hauling , and in addition
to close up the shop if the Union prevailed there, constituted a threat of reprisal'
sufficient to remove any alleged protection of the talk and these utterances under
Section 8 (c), and an interference with exercise of the rights of the workers under
g Jacques testified to making complaint regarding it in January 1955 to Superintendent
Bell, but without any results.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 7, and consequently a violation of Section 8 (a) (1) .9 In so finding, I do
so as being more impressed with the honest and nonevasive testimony of these men
than by the testimony of D'Arcy in regard to this gathering, and the qualification
D'Arcy attempted to attach to his testimony regarding his assertions (otherwise
practically admittedly being made as alleged ) being limited only to the circum-
stance of the Union coming in and attempting to run his business.io
Nevertheless, the drivers (with exception of Allyson) went ahead in April and
joined the Union, and the Union filed a petition for an election on May 2. Be-
tween such date and the meeting again called by D'Arcy on May 11, we have art
event which cannot be ignored in the testimony of Pike relating to his employ-
ment in a private capacity by D'Arcy at his home.
Pike alleges that on May 7, D'Arcy requested him to speak regarding the Union
to some of the more "level headed" of the men, after indicating to Pike his
surprise and displeasure at his joining the Union. Upon his refusal to comply with
the request, he was told by D'Arcy of the termination of his employment, and
advised to also inform driver Jenness (who had also joined the Union) of similar
termination action in regard to his private employment. Pike states that he was
further told by D'Arcy that when he was ready to turn in his card to the Union,
he would be given such type of private work again. D'Arcy did not testify in
regard to these allegations. I find no reason to not accept and credit the testimony
of Pike on this matter, which I do so credit. Such action of D'Arcy, although
occurring outside of the business directly related to this situation, I find was inter-
ference and coercion chargeable to the Respondent in violation of Section 8 (a) (1).
The meeting of May 11, 1955, was tape recorded by D'Arcy, to the surprise and
some objection of the men, but as D'Arcy asserted, for the future protection of all pres-
ent and to avoid misstatements as to what was said and discussed. D'Arcy delivered
a prepared address followed by general recorded conversation of all present.il At
this meeting the five drivers who had joined the Union wore prominently displayed
union buttons. D'Arcy presented to them and discussed a comparative setup of
factors involved in their working conditions and earnings, as against those pre-
vailing in a local contract of the same Union with an employer not distinctly
established as carrying on a business directly comparable in all respects. On the
whole the indication was that working under such contract, these employees would
not be as well off under any strict enforcement of the provisions of such other union
contract, and he asked his employees to consider both sides of the situation pre-
sented.12 He then pointed out the possible courses open to Respondent if the men
chose to remain in the Union. This would involve abolition of Christmas bonus.
and meal payments, less working of and payment for overtime, with payment time
ceasing on return to the plant from any trucking assignment, elimination of plat-
form loading, shipping room, and other "made" work in the warehouse and factory,
plus the possible elimination of all delivery facilities or the contracting out of all
truck hauling. A suggested alternative was for the men to resign from the Union,
leaving the Respondent free to continue present policies and relations with the
drivers. A closing passing reference was made by D'Arcy to the question of a
wage increase possibility, without any definite commitment as to giving it at any
early date, pointing out that competitive market conditions would not permit it.13
In the discussion which followed the prepared talk, the' drivers outlined their com-
plaints regarding the shipping room conditions and alleged unfair assignment of
workloads. The testimony of D. D'Arcy in the representation proceeding on May
23, 1955, clearly indicates that it was a regular procedure for the drivers to spend,
about half of their working time in the shipping room and other "made" work,
and to always furnish them full-time daily employment. This working procedure
was altered about. 3 days after such hearing when, on May 26, the drivers were,
9 Price Valley Lumber Co., 106 NLRB 26, 216 F. 2d 212 (C A. 9), cert. denied 343.
U S. 943.
10Magee Carpet Co., 91 NLRB 1950
11 The full recording was placed in evidence and is detailed in the transcript and will,
not be fully described herein The testimony of the drivers is that statements were more.
strongly made at the March 1 meeting, although the points covered were largely similar
v In this connection, up to this point D'Arcy had no contract with the Union nor had
any form of proposed contract been presented to him.
is D'Arcy testified that there was no change in business or market conditions between
May 11 and June 3, when such increase was given and put into effect by the Respondent-
D'ARCY COMPANY, INC. 1327
confined thereafter to only the actual driving work, and denied all other opportunity
as heretofore to secure full-time employment.14
Three days after the election in which the Union prevailed, the Respondent
leased from one Newhall two tractors with drivers on a mileage payment basis.15
When put in operation with the new trailers, this eliminated much further use of
the old straight body trucks on road deliveries. It is clear however that the regular
truckdrivers had all also previously competently operated the company owned tractor-
trailer combination both on short hauls and infrequent long hauls. Newhall, Jr.,
and Brown, the new drivers engaged in work of new tractors and exclusively in
deliveries to customers, were placed on the payroll of Respondent, assertedly only
to meet Interstate Commerce Commission regulations. 16 In addition to base pay of
5 cents per mile paid to them, the Respondent, as with all other employees, de-
ducted for social-security and withholding taxes. The Respondent loads trucks for
these extra acquired drivers and has general supervision of their work, without
exercising specific control of all factors of the truck operation in making deliveries.
Although it was undoubtedly the intention of the Respondent to enter into a full
contractual relationship with Newhall, Sr., which would retain Newhall, Jr., and
Brown, the actual truck operators as employees of the lessor, the record presented
herein would not sustain any such finding. On such record, I hold such nonowner
drivers to be employees of the Respondent.17 The introduction and imposition
of these additional new driver employees, and the limitation of all customer delivery
work to them, resulted in a further distinct cut in the driving hours of work and
the wages earned by the old or regular drivers, which, superimposed on the reduced
hours of work and earnings resulting from the May 26 elimination of the shipping
room and all other work activities of these regular drivers, finally reduced their
working time to a total of about 13 to 20 hours per week. This occasioned the
termination of his employment by Jenness, stating the reason therefor to the Respond-
ent as being the reduced earning basis to which he had been forced which was
insufficient for his family needs' and required his action.18
The two big moves by the Respondent, namely the change in operation method
in the shipping room with introduction of a new shift of later reporting employees
to complete each day's work without overtime work, and enabling the pinpointing
of responsibility as to loading, damage, and breakage, and the introduction of addi-
tional more modern tractor-trailer equipment, probably proved to have the economic
value to the Respondent now claimed for them. That their occurrence at this time
was motivated only by economic reasons as alleged by the Respondent, and that the
changes would have occurred then regardless of the situation present, must be
evaluated in the light of all the surrounding circumstances and events. Facts still
speak louder than words. And it is the effect, not motivation, of an employer's ac-
tion which determines whether he has committed an unfair labor practice. (Price Val-
ley Lumber Co., supra.) The meetings of March 1 and May 11 (which I hold are
not protected by Section 8 (c)) plainly indicated to these workers, although cleverly
14 D'Arcy testified that the decision to take away the shipping room work from the
drivers was arrived at "a few days" after the meeting of May 11 with the drivers and
the hearing of their "gripe" regarding such shipping room situation However, no men-
tion of such decision, or scheduled change, was made in his testimony in the representa-
tion hearing of May 23 when considering the proper unit for representation of such
workers, when he outlined the scope of drivers' work as including about half time on work
other than delving
15 D'Arcy testified the Respondent became alarmed over increased shipping and delivery
costs in the fall of 1954 following receipt of an accountant's report, but it appears that
no genuine consideration of new procedures relative to such work were taken prior to the
advent of the union threat
1e Newhall, the lessor, was not licensed by Interstate Commerce Commission and
Respondent had to assume responsibility for those drivers in Interstate commerce deliveues.
"On the facts we have, the De Hart Motor Lines, Inc, 111 NLRB 1252, and Cement
Transport Co., 111 NLRB 175, cases relied on and cited by Respondent to sustain an
independent contractor relationship for these additional nonowner drivels ale distinguish-
able and not controlling herein.
18 Pike also left for other employment, apparently for the same reason, but without stating
his reason in any manner to the Respondent No claim has been made for any alleged
constructive discharge in his instance, and apparently he did not seek or desire reinstate-
ment or further employment with the Respondent
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and subtly presented , the coercive threat that union activity and continued affiliation
would result in lowered hours of work and regular pay (perhaps even the job
itself ), and-loss of perquisites , such as Christmas pay and meal allowances. In
taking the action the Respondent deemed necessary to correct the shipping room
personnel and driver situation , the Respondent was not content with achieving just
such local result, but coincident with it, and quite unrelated to it, deprived the
drivers of all other types of "made" work previously afforded to them . Scant rea-
son of economic basis has been or can be urged for the additional actions taken.
The quickly following wage increase without any apparent economic change in
the business situation of the Respondent justifying the action , has deep significance
which cannot be overlooked in any question of motivation of -the Respondent, par-
ticularly in the face of the coming representation election , and under the circumstances
must be found to be in itself a violation of Section 8 (a) (1).19
Likewise , as bearing on motivation , one must give great weight to the incident
and accepted declarations of Pike relative to D'Arcy cutting off the personal private
• employment of Pike (and simultaneous ending of similar employment of Jenness)
as a violation of Section 8 (a) (1), and a procedure calculated to not be without
effect in relation to the impact of it on the members who joined the Union. The
following up of such incident within a few days with the meeting of May 11, and
the full unfolding then to these drivers of the to be expected results of continued
support of the Union, cannot be overlooked . The use of additional temporary
and inexperiencd summer help in sanding and painting work in the summer months,
instead of following the well-established procedure of affording it to the drivers
now practically idle, must also be given great weight. The prompt effecting of
the leasing vehicle contract following on top of the unfavorable election result, with
the practical failure to accept such result , and refusal of the Respondent for sev-
eral months to consent to any collective bargaining with the certified Union, must
be considered in the picture presented . In the context of all these occurrences' and
circumstances , particularly as to the timing of them , all looking to a planned hap-
pening and result, I find it very difficult to accept the economic basis as the' sole
force of Respondent 's course of action . Throughout , they carry out consistently
the threats expressed and implicit in the first declaration of D'Arcy in the March
I meeting and as reiterated in the May 10 meeting . Mere predictions of events
would ordinarily not have such an effective and high degree of correlation. In a
situation that must be subject largely to circumstantial proof or support, I find that
the General Counsel has sustained his burden of proof as to the complaint allega-
tions. I make the favorable inference from the testimony and all circumstances,
that, the Respondent did deprive the drivers herein involved of full work opportunity
and earnings because of their having supported and joined the Union , and did-not
proceed throughout in pursuing only legitimate economic objectives . In addition
to the violations of Section 8 (a) (1) previously indicated , I find that the Respondent
also acted in violation of Section 8 (a) (3) in putting into effect the threats of
reduced hours of work and earnings in an effort to discourage membership in the
Union In view of such findings , and the asserted position of the parties as set
forth in the briefs, of the dependence of - determination as to Jenness following and
being based on such prior findings, I find that Norman Jenness was constructively
discharged by the Respondent on July 29 , 1955 , in violation of Section 8 (a) (3).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent described in section I, above, occurring in con-
nection with its conduct occurring in section III, 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 Respondent has engaged in certain unfair labor practices
violative of Section 8 (a) (1) and (3) of the Act, it will be recommended that it
be ordered to cease and desist therefrom and that it take certain affirmative action
to effectuate the policies 'of the Act.
Having found that the Respondent has discriminated against James A. Knowlton,
Harold Pike , Harry R. Cassell, Norman A. Jenness , and George Jacques in regard
19 Jamestown Stet Zing Corporation , 106 NLRB 466 , enfd. 211 F. 2d 725 (C. A. 2).
D'ARCY',COMPANY, INC. 1329
to their terms and conditions of employment, and as regards Norman A. Jenness
with his tenure of employment as well, I shall recommend that the Respondent
make each of them whole for any loss of pay he may have suffered by reason of
the Respondent's discrimination against him, by paying to each of them a sum
of money covering his loss of pay resulting from the discrimination, based upon
the difference between the amount actually paid to each of them as weekly pay
since the beginning date of the discriminatory action on May 26, 1955, plus any
interim weekly net earnings if also otherwise employed, and the amount that would
normally have been earned absent the discrimination by each of them and paid
by the Respondent in each week. I shall further recommend that the Respondent,
upon request, make available to the Board, or its agents, for examination and copying,
all payroll records and reports, and all other records necessary to analyze the amount
of back pay due.
Although believing that in the circumstances of this case a general cease and
desist order would be warranted, in view of the prior stipulation of the parties
settling the refusal to bargain question involved, which contained an order directing
the Respondent to post a notice containing such a broad general cease and desist
clause, to avoid duplication it will not be recommended again herein.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondent, D'Arcy Company, Inc., affect commerce within
the meaning of Section 2 (6) and (7) of the Act.
2. Chauffeurs, Teamsters & Helpers Local Union 633, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. The Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with reduced working hours or loss
of employment or other economic reprisals if they join or assist any labor
organization.
WE WILL NOT discourage membership in or activities on behalf of any labor
organization, by discharging discriminatorily, or by discriminating in any other
manner in regard to the hire or tenure of employment or any other term or
condition of employment.
WE WILL make whole the employees named below for any loss of pay each
may have suffered by reason of our discrimination against them to the extent and
in the manner recommended by the Trial Examiner in his Intermediate Report:
James A. Knowlton Harold Pike
Harry R. Cassell George Jacques
Norman A. Jenness
All our employees are free to become, remain, or refrain from becoming members
in any union or other labor organization except to the extent this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the Act.
D'ARCY COMPANY, INC.,
Employer
Dated---------------- By----------------------------------------------
I (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
390609- 56-vol. 115-85