Diamond Standard Fuel Corp.

National Labor Relations Board - Board Decisions

Nov 25, 1969

179 N.L.R.B. 702 (N.L.R.B. 1969)

702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diamond Standard Fuel Corp . and Chauffeurs,
Teamsters , Warehousemen and Helpers, Local
Union ' No. 633 of New Hampshire, a/w
International Brotherhood of Teamsters,
Chauffeur's, Warehousemen and Helpers, of
America. Case 1-CA-6478
November 25, 1969 -
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS,
BROWN AND ZAGORIA
On July 28, 1969, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the. Respondent had
engaged in and was engaging in certain.unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has 'delegated its
powers" in connection ` with this, case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the, National Labor
Relations Act, as amended, the National Labor
Relations Board, , adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Diamond
Standard Fuel Corp., Windham, New Hampshire,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order. ' '
TRIAL EXAMINER'S DECISION
SIDNEY'SHERMAN, Trial Examiner Copy of the original
charge herein was served on. Respondent on October 4,
1968,' the original complaint issued on November 20, and
the case was heard on December 18 and 19, and April 30,
and May 1, 1969 The issues litigated related to alleged
violations of Section 8(a)(1), (3), and (5) of the Act. A
brief was filed by the General Counsel
Upon the entire record,' including observation of the
demeanor of the -witnesses, the following findings,
conclusions, and recommendations are adopted
I JURISDICTION -
Diamond Standard Fuel , Corp., herein called
Respondent, Is _a New Hampshire Corporation, and, is
engaged at Its facility,in Windham, New Hampshire, in
the hauling and sale of oil, sand, gravel, bakery products,
and' building' supplies. During 1967, Respondent
performed services and sold goods in sufficient quantity to
customers within and without the State of New
Hampshire to meet the Board's•jurisdictional standards
If THE UNION
The Union named in the caption of this Decision is a
labor organization under the Act. .
III THE UNFAIR LABOR PRACTICES
'In concluding that Respondent unlawfully refused to bargain in
violation of Section 8 ( a)(5) of the Act , we find it unnecessary to adopt or
pass upon ' the Trial Examiner ' s finding that Respondent's refusal to
recognize the Union was motivated in part by its apprehension "that the
Union would demand that Respondent give its sand and gravel drivers half
the profits derived from their operation
'Respondent ' s unlawful conduct included eight discriminatory layoffs in
violation of Section 8 (a)(3), as well as numerous interrogations and threats
in violation of Section 8(a)(I) Because of the extensive and pervasive
nature of Respondent ' s unfair labor practices we are satisfied that a
bargaining order would be necessary , even in the absence of an 8(a)(5)
violation, to remedy the other unfair labor practices in this case
Additionally , we find that Respondent , by engaging in the foregoing
conduct while refusing to recognize the Union as majority representative of
its employees , violated Section 8(a)(5) and ( I) of the Act By its conduct,
Respondent not only destroyed the possibility of conducting a fair and
coercion-free election, but has demonstrated a propensity to engage in
violations of the Act under conditions which heighten the possibility that
relief in the form of customary cease and desist, backpay, and
reinstatement provisions , etc , will not be sufficient to effectuate the
statutory policies herein In these circumstances we are persuaded that the
unambiguous cards validly executed by a majority of employees in the unit
are a more reliable measure of employee desires on the issue of
representation in this case than would be an election , and that the policies
of the Act will be effectuated by the bargaining order we enter herein
N L R B v Gissel Packing Company , 395 U S 575
The pleadings, as amended at the hearing, raise the
following issues
I Whether Respondent violated Section 8(a)(1) of the
Act by interrogation and threats of reprisal for Union
activity's -
2. Whether Respondent violated Section 8(a)(3) and (1)
by laying 'off eight of its employees, hereinafter called
"the claimants," on September 19'
3 Whether Respondent violated Section 8(a)(5) and (1)
of the Act by refusing to recognize the Union"
A Sequence of Events,
Respondent operates a hauling business out of
Windham, New Hampshire , in the course of which it
transports sand and gravel , building supplies , fuel oil, and
All dates refer to 1968, unless otherwise indicated
'For corrections of the transcript and certain rulings on evidence, see the
Orders of May 29, and July 11, 1969 A letter dated May 8, 1969, from
Respondent's counsel and attached material are hereby received in evidence
as TX Exhs 3 and 4, respectively
'See paragraphs 4(a),(b), (c), and (d) of the original complaint and the
corresponding paragraphs of Respondent's answer
179 NL RB No. 117
DIAMOND STANDARD FUEL-CORP. 703
bakery products. Early in September the Union began to
organize Respondent's drivers On September 10 and 11,
eleven of the drivers, most, or all, of whom were then
engaged in hauling sand and gravel,, signed cards for the
Union On September 13, • the Union telephoned
Respondent's treasurer, Paul Clancy,' to request
recognition as.the representative of Respondent's drivers,
and the same day addressed 'a letter to him repeating that
request Respondent admittedly has at all times declined
to recognize the • Union On September 19, all the
claimants were notified that. there was, no more work for
them. All were recalled on October 7
Meanwhile, on September 18, the-Union filed a petition
in Case I-RC-10,244 After a.hearing held on November
19," the Regional Director on December 16, issued a
Decision and Direction of Election. On January 24, 1969,
while Respondent's Request for Review was pending
before the Board, the Union withdrew its petition'.
B. Discussion
I The 8(a)(I) issues
As to Clancy
Christiansen testified that on September 16, he was
warned by Clancy that he would park or lease
Respondent's trucks before he would deal with the Union,
and that Christiansen was free to look for another job
Spade testified that on September 13, Clancy asked if
Spade knew anything about the Union, declared that he
wanted no part of the Union and would sell, lease or park
Respondent's trucks before he would have a union, and
solicited Spade to talk to the other drivers, find out what
they knew about the Union, and relay Clancy's remarks
to them Spade added that later the same day he repeated
to the other drivers what Clancy had said
Russell testified that during, the first week of September
Clancy called a meeting of-the sand and gravel drivers,
told, them he understood, they were "going Union," and
that he would not "go Union," but would sell
Respondent's trucks. I `
Morley. testified that on September 18, Clancy told him
that "some wise guys were trying to get the Union in the
shop," and that he would. "fire everybody before he would
let the Union in", and that, a day or so later Clancy
averred that he would sell the trucks rather than deal with
the Union
• Rodgers testified that on September 17, Clancy showed
the witness a letter and asked him if he knew what it was
about, that, after glancing at the letter and noting that it
purported to be from the Union, the witness denied any
knowledge of the subject matter of the letter, that Clancy
explained that he had thought the witness would know
about the letter because of his connection with the Union,
and that Clancy asked whether it was not true that
Rodgers'was a Union member.
Clancy, admitted asking Spade on September' 13, if he
had heard anything, about the Union, and requesting
Spade to find out what the other men knew about . it
However, as to all other foregoing instances of alleged
'it was agreed that the eight claimants hauled sand and gravel at all
times here material In addition ; three other card signers , who had been
hauling sand and 'gravel , were transferred to oil delivery on an unspecified
date in September
'All reference to "Clancy" hereinafter denote Paul, as distinguished from
other members of his family mentioned in this record
'The transcript of that hearing was received in evidence as G C Exh 5
interrogation and threats Clancy either pleaded lack of
memory or entered vague denials In view of this, I credit
the foregoing employee testimony with 'regard to such
interrogation and threats, and find that Respondent
thereby violated Section 8(a)(1)
As to Zanca
Rodgers testified that on September 18, Supervisor
Zanca told him that Clancy would not take the Union
sitting down; that, if it was up to Zanca, the trucks would
be parked, and that Respondent might, in fact, park the
trucks within the next day or two Christiansen attributed
to Zanca a statement in the morning of September 19,
that the trucks would be parked that night and that
Respondent had decided to sell some of them because of
the "union business."
- Zanca denied that he had made the remark attributed
to him by Rodgers However, on the basis of demeanor I
credit Rodgers and find that on September 18, Zanca
indicated to him that the trucks might be parked within
the next few day's as a•measure of reprisal for the drivers'
Union activity
2 The 8( a)(3) issue
As already related, at the close of work'on September
19, Respondent' laid off all the claimants, recalling them
on October 7. The General Counsel contends that such
layoff was in reprisal for, and calculated to chill, the
drivers' interest in the Union In support of this
contention, the record shows the following
(I) The threats by Clancy, found above, to
Christiansen, Spade, Russell and Morley, delivered during
the week before 'the layoff, that Respondent would
suspend its operations rather than deal with a union
(2) The like threat, found above, delivered by Zanca to
Rodgers on September 18
(3) Spade's testimony that on or about September 19,8
in the context of a reference to the Union's request for
recognition,, and an avowal that he would have no part of
the Union, Clancy declared that he would not share his
sand and gravel income with the drivers' on a 50-50 basis,'
and-the testimony of Russell and Morley that, in laying
them off on September 19, Zanca explained that Clancy
was averse to giving up half his profits to the drivers
Since Clancy did not enter an unequivocal denial,' I credit
Spade as to his conversation with Clancy Although Zanca
denied the remark ascribed to him, I credit the testimony
of Rodgers and Morley, because mutually corroborative
and because I was more favorably impressed by their
demeanor It is, accordingly, found that, for reasons not
apparent in the record, Clancy apprehended that the
Union would demand that Respondent give its sand and
gravel drivers half the_ profits derived from their
operations, and that this apprehension motivated, 'at least
'Zanca also controverted Christiansen's foregoing testimony Respondent
sought to impeach Christiansen's credibility through evidence that,
although Christiansen ascribed to Zanca' a reference in the same
conversation to Kirle as Respondent 's counsel, Respondent 'did not in fact
retain Kirle until October 4, and his name was not even known to Clancy
or Zanca until October 3 However, there is no need to 'resolve the
credibility issue thus raised, since any finding 'of a threat by Zanca to
Christiansen on September 19, would be merely cumulative
'According to Spade , this incident occurred about a week after
September 13, but it is inferrable from Spade's testimony that he was at
the time still in Respondent's employ, and had not yet been laid off
'He pleaded lack of recollection
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in part, Clancy's refusal to recognize the Union 10 It is
inferred, moreover, that this is what Zanca had reference
to, in explaining to Russell and Morley that they were
being laid off because of Clancy's aversion to sharing
Respondent's profits equally with the drivers
(4) The fact that, of Respondent's 20 odd employees the
only ones laid off were 8 of the II card signers "
Respondent contends, nevertheless, that the layoff was
economically motivated, being due to the unprofitability
of the sand and gravel operation, which operation was the
only one affected by the layoffs. Clancy testified that on
September 19, Respondent was hauling sand and gravel
for Benevento, that it had been doing so since September
4, that Benevento paid only 90 cents a ton for hauling as
compared to another customer of Respondent's, Perini,
who paid $ 1.40 a ton, that Respondent took the
Benevento job as a stop-gap measure, pending 'the
expected resumption of a Perini job, that Clancy decided
to discontinue the hauling for Benevento on September 19,
because of its unprofitability, and to recondition the
trucks so that they would be in fit shape either for the
Perini job or for sale, if the Perini job did not materialize,
and that that job did materialize on October 8, at which
time the laid-off drivers were recalled, as found above
However, Clancy admitted that, when the Perini job
unexpectedly terminated on October 17, Respondent
resumed hauling for Benevento at the same low rate as
before, which operation continued until November 8.
Clancy admitted, also, that, even while hauling for Perini
between October 8 and 16, Respondent did some work for
Benevento As to this work, as well as that done .for
Benevento after October 17, Clancy offered the
explanation that he accepted the work, notwithstanding
that it resulted in a loss to Respondent, because he wanted
to keep his complement of drivers intact However, he
failed to explain why he did not regard that as sufficient
reason to continue with Benevento on September 19, nor
why, at that time, he preferred, instead, to risk losing the
services of the drivers by laying them off ,
Moreover, Clancy admitted that his view that
Respondent was losing money on the Benevento job at 90
cents a ton was not based on any advice he received from
his accountant nor on any business records, but solely on
his own estimate of the situation However, he agreed that
out of the 90 cents per ton paid by Benevento Respondent
retained about 40 cents, after deducting the cost of sand
and gravel and the drivers' pay, and he acknowledged that
he had made no attempt to determine his other applicable
expenses 12
"In fact , as related below, Clancy admitted that his sole reason for not
recognizing the Union was that he could see no economic advantage in
such a step
"Clancy opined at the hearing that on September 19, eleven men were
regularly employed in hauling sand and gravel and that all II were laid
off The record shows that on that date only eight card signers were sand
and gravel drivers and that the other three card signers were delivering oil
(See fn 4 , above ) Thus , Clancy 's testimony implies that on September 19,
there were three sand and gravel drivers in addition to the eight card
signers and that these three were also laid off , even though they had not
signed cards However , Respondent ' s records (TX Exhs 2( a)-2(a)(a) show
that only the eight claimants were laid off on September 19
"At the hearing the parties submitted a stipulation (TX Exh I), wherein
it is recited that in response to a request by the General Counsel for
inspection of its records pertaining to the profitability of its sand and
gravel operations between January I and September 19, 1968, Respondent
refused to furnish any such data other than for the period between
September 3 and 19 , and with respect to that period submitted only
records showing its gross income from that operation and the cost of sand
Finally, it is undisputed that on September 18, Adams
applied for work and was hired on the same day to deliver
bakery products (the "bread run"), notwithstanding that,
as Zanca admitted, it had already been decided to lay off
the sand and gravel drivers the next day When asked to
explain why he did not transfer one of those drivers to the
bread run, instead of hiring a new man, Zanca explained
that that run was less desirable than the sand and gravel
work because of lower weekly earnings and the night-time
hours, and that for this reason the sand and gravel drivers
had in the- past shown a lack of interest in that work
However, whatever the situation may have been when the
drivers were fully employed, it is not credible that Zanca
would assume on September 18, that none of the sand and
gravel drivers would accept a less desirable fob rather than
be laid off." ,
Upon consideration of all'the foregoing circumstances,
it is concluded that the true reason for the layoff of the
drivers is to be found in Respondent's various warnings of
suspension of operations in reprisal for Union activity,
and that the economic reason assigned by Respondent was
merely a pretext It is therefore found that, by laying off
on September 19, the eight sand and gravel drivers named
in the amended complaint, who constituted the bulk of the
Union adherents,i° Respondent violated Section 8(a)(3)
and (I) of the Act
3 The 8(a)(5) issue
a The appropriate unit
The complaint, as amended, alleges that the following
unit is appropriate for collective bargaining
All truck drivers employed at Respondent's
Windham, New Hampshire, facility, excluding office
clericals, professional employees, mechanics, the
tireman, serviceman, guards, and all supervisors as
defined in the Act
Respondent contends that the mechanics, tireman and
oil burner serviceman should be included, and that, in any
case, such of them should be included as drive trucks on a
part-time basis.
At the time of the Union's September 13, bargaining
request, the mechanics were Davis, Charles Clancy, and
Sillaber, the tireman was Nagle, and the oil burner
serviceman was Salois Respondent then had 17 full-time
truckdrivers, all of whom operated out of Respondent's
garage in Windham, New Hampshire Eight of the drivers
hauled sand and gravel from sources of supply in
Massachusetts to the sites of construction jobs in that
and gravel furnished by it (The information derived from such records is
set forth in the stipulation ) In that stipulation Respondent asserted that it
had no other records relating to the profitability of the sand and gravel
operation during the period in question
131n fact , at the time of the layoff the bread run was not less desirable
from an earnings standpoint, since Zanca admitted that in September the
sand and gravel drivers were earning no more than the bread drivers
Moreover , the record shows that sand and gravel drivers have at other
times been offered and accepted employment on the bread run Thus,
Rodgers was working on the bread run at the opening of the instant
hearing , and it is not disputed that the same run had been offered to
Christiansen some time after October 7 See, also , the transcript in the
representation case at p 72
"That Clancy knew that they were Union adherents may be inferred
from the small size of Respondent's operation , as well as from the fact
that only Union adherents were laid off Wiese Plow Welding Co , 123
NLRB 616 In any case, it is clear from the circumstances related above,
that, whatever the basis for selection its action was taken to impress upon
all its employees Respondent's displeasure at the inroads made by the
Union and to deter them from any further Union activity
DIAMOND STANDARD FUEL CORP. 705
State. Most of the rest delivered oil to points in and
around Windham, and a few were engaged in distributing
bakery products from a source of supply in Boston,
Massachusetts, to points in Connecticut The bakery
drivers worked only at night. As to the sand and gravel
and oil drivers, there was no contradiction of
Christiansen's testimony at the representation hearing, and
I find, that they reported for work about 4 30 a.m. and
did not complete their deliveries until about 5.30 p m is As
for the mechanics, who repaired the trucks, one, Davis,
normally worked from 8 a m to 5 p m , whereas Sillaber
and Clancy, worked at night from 9 p m to 5 30 a.m
Prior to September 13, none of the mechanics did any
hauling The drivers were not required to do any
mechanical work but did occasionally volunteer to help a
mechanic in lifting an object' or by passing him a tool, and
they have voluntarily made repairs on their own trucks 16
Nagle, the tireman, serviced the tires on the trucks. The
oil burner serviceman, Salois, repaired customers' oil
burners. Respondent attempted to show that these two
employees spent a substantial amount of time in making
oil deliveries As to Nagle, it was shown that between
April 15 and September 13, he made 44 such deliveries
However, Nagle admitted that he had not been required
to make any of these deliveries, but volunteered to do so
at times when he had no tires to change ' Moreover
according to Nagle's own testimony, none of the deliveries
could have taken more than 45 minutes. Even on the basis
of 45 minutes per delivery his total time spent on the 44
deliveries was only 33 hours during a period of '5 months
With respect to Salois, the record shows that he made 33
oil deliveries between January 23 and September 13, most
of them in Windham Under the circumstances, it is clear
that during a period of nearly 8 months Salois spent even
less time than Nagle on oil deliveries
All the employees here involved share common facilities
at Respondent's garage.,The mechanics, Nagle, and Salois
are paid on a weekly salary and receive 9 paid holidays
and I week's paid vacation. While the oil drivers are also
paid a salary and share in the paid vacations, the sand
and gravel drivers are compensated only on a tonnage or
trip basis and have no paid vacations or holidays.
There is no bargaining history here and no union is
seeking a broader unit
In Mc-Mor-Han Trucking Co , Inc," the Board found
to be appropriate a unit of truckdrivers, excluding
mechanics The Board there stated
The facts of this case do not reveal such a
community of interest or degree of integration between
the truck drivers and the mechanics as would render the
requested truckdriver unit inappropriate On the
contrary, the traditionally - distinct functions and
interests of truckdrivers are clearly present here They
perform a function - the over-the-road hauling of milk
- which is both different and separate from the work
performed by the mechanics Further, the regularly
assigned road trips of the drivers require that they
spend a substantial majority of their working time away
from the terminal, thus considerably limiting their work
contacts with the mechanics Finally, except for the
infrequent driving assignments of Walters, there is no
interchange between the two employee groups, their job
classifications are dissimilar, and there are substantial
differences in their compensation, hours, and other
conditions of employment. While there are also some
"See G C Exh 5 at p 40
"There was no evidence as to the frequency of such repairs
11166 NLRB No 44
employment interests which both groups share -
identical insurance and holiday benefits and their
current common supervision - these factors are not so
significant as to require the inclusion of all the
employees in a single unit
Under circumstances similar to those extant herein,
the Board has consistently held that truckdrivers
comprise a functionally distinct group which 'may
constitute a separate appropriate unit where, as here, a
union seeks to represent them separately, there is no
bargaining history, and no labor organization seeks to
represent them in a broader unit 6 Therefore, we
conclude from the entire record in this case that the
Employer's truckdrivers enjoy 'a sufficient community
of interest separate and apart from the mechanics to
warrant finding them to be a unit appropriate for
collective bargaining.'
'Ballantine Packing Co . Inc , supra, and cases cited therein, see E H
Koester Bakery Company, Inc, 136 NLRB 1006, 1011, Cf E I
Dupont DeNemours and Company (May Plant), 162 NLRB No 49
'Archie's Motor Freight, Inc, 130 NLRB 1627, 1629, Chemical Express.
117NLRB 29
I deem the foregoing decision to be controlling here,
and find that a unit of truckdrivers, excluding all other,
employees, is appropriate
There remains to be considered Respondent's
alternative contention that the mechanics, Nagle and
Salois should be included in the unit because they at times
do hauling work. However, P Clancy conceded that one
mechanic, Sillaber, did not do such work at any time and
the other mechanics, Davis and C Clancy, acknowledged
that they did no such work before September 13 18 Thus,
the only issue is as to Nagle, who, as found above, spent
only 33 hours on oil deliveries in a period of 5 months,
and Salois, who, as found above devoted thereto less than
25 hours in a period of nearly 8 months In the
Me-Mor-Han case, supra, the Board held that a
mechanic, who in the course of a year did some truck
driving on all, or part, of 20 days, did not have sufficient
community of interest with full-time truckdrivers to
warrant including him in their unit. For like reason, I find
insufficient' basis here for including Salois, Nagle, or the
mechanics, as part-time truckdrivers
b The Union's majority status
The General Counsel contends that the Union achieved
majority status on September 11, by which date, as the
record shows, II of Respondent's full-time drivers had
signed cards for the Union The cards were duly
authenticated at" the hearing They were on their face
unambiguous applications for membership in the Union,
and contained a designation of the Union as the
subscriber's "representative for the purpose of 'collective
bargaining " There was no evidence that any
misrepresentations were made by the solicitors in inddcmg
employees to sign the cards However, . Russell testified
that at a meeting held on September 12, the day after all
the cards had been signed, Union Agent Wheeler told the
employees that, if enough cards were signed, he would
petition the Board for an election. Christiansen averred
that on that occasion Wheeler made some reference to
filing a petition with the Board, and Morley attributed to
Wheeler the assertion that there would be an election
Wheeler's version was that at that meeting he explained
"it is clear, moreover, that the amount 'of such work done by them after
September 13, was even less extensive than that done by Nagle or Salois
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would call Clancy the next morning and that, if,
as Wheeler expected would be the case, Clancy refused to
recognize the Union as the representative of the drivers,
Wheeler would file a petition with the, Board Wheeler
added that he told the employees that no action would be
taken unless the Union already "had a majority " The
strongest corroboration of this came from Rodgers, who
testified that Wheeler indicated that he would send a letter
to Clancy notifying him that the employees had
designated the Union as their representative, that whether
there would be an election would depend on Clancy's
reaction to that letter, and that to have an election the
Union would need to represent a majority of the
employees Christiansen confirmed that Wheeler indicated
that a letter requesting recognition would be sent to
Respondent
It is found from the foregoing that Wheeler did refer to
the filing of an election petition , but that he did so in the
context of a discussion of the alternatives available to the
Union if Respondent refused to recognize it " In any case,
since the foregoing remarks were made by Wheeler after
the cards were signed, they could not have affected the
decision of the employees to sign them It is found,
therefore, that the cards were valid designations of the
Union, and that since the Union on September 13, had I I
such designations from Respondent's 17 truckdrivers, it
represented a majority of those in the appropriate unit.
refusal of recognition, remediable by a,bargaining order
In Gissell Packing, supra, the Court found such a
situation to exist where the employer's misconduct was
limited to threats of a shutdown." Here, Respondent's
unfair labor practices comprised not only such threats, but
also extensive interrogation and the layoff of the bulk of
the Union adherents It,follows that a finding of unlawful
refusal of recognition and the issuance of a bargaining
order are appropriate here 32
It is accordingly found that since September 13,
Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize the Union and that the policies of
the Act will best be effectuated by the issuance of a
bargaining order as a remedy for such violation.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with Respondent's
operations described in section I,- above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
c The refusal to recognize
Admittedly, Clancy on September 13, rejected the
request of Union Agent Pitman for recognition While
asserting at the hearing that he told Pitman that he
doubted the' Union's majority status, Clancy, ,admitted in
his testimony that his only reason for not recognizing the
Union was that he did not see how such recognition would
lower his cost of operation Moreover, I have credited (a)
the testimony of Spade that Clancy told him he wanted no
part of the Union because he did not wish to give the
drivers half of Respondent's profits, and (b) the testimony
of Spade and other drivers that Clancy declared that, to
keep the Union out he 'would terminate or. suspend,hls
operations Such avowals, particularly when coupled, as
here, with extensive unfair labor practices calculated to
undermine the Union, are more consistent with outright
rejection of the principle of collective bargaining than with
a refusal of recognition merely because of a good-faith
doubt of majority status
However, under the Supreme Court's opinion in Gisse!!
Packing,'" an employer's improper motivation in refusing
to recognize a union on the basis,of signed cards is no
longer necessarily dispositive of the instant issue. It is now
incumbent upon the - Board to appraise the relative
reliability of the cards, on the one' hand, and the election
process, on the other, as a gauge of employee sentiment
In making such appraisal, the Board , is required to
consider the, impact of any employer unfair labor
practices Thus, where the-employer has engaged in unfair
labor practices of such an "outrageous" or "pervasive"
nature that the invocation of traditional remedies affords
no'guarantee that an election will provide a more accurate
index of employee sentiment than the cards, the Board
may rely on the cards as a basis for finding an unlawful
"The testimony of Morley and Russell is not inconsistent with the above
findings ( Russell professed to be unable to recall what remarks Wheeler
made other than his reference to an election petition, and Morley was not
asked about any such other remarks
Having found that Respondent engaged in certain
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act, I shall recommend that it be
directed to cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the unit set forth above
and, if an understanding is reached, embody such
understanding in a signed agreement 27
It having been found that Respondent discriminatorily
laid off Christiansen, Morley, Nugent, Reed, Richmond,
Rodgers,. Russell and Spade, I shall further recommend
that Respondent be ordered to make them whole for any
loss of pay resulting therefrom, less their net earnings
during that period Such backpay shall be computed on a
quarterly basis- in a manner prescribed in F W
Woolworth Company, 90 NLRB 289, and shall include
interest at 6 percent as provided in Isis Plumbing &
Heating Co, 138 NLRB 716
CONCLUSIONS OF LAW
I Respondent is an employer engaged in commerce
and in 'operations affecting 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
"N L R B v Gisse!! Packing Co , 71 LRRM 2481 (June 16, 1969)
"See the discussion in Gissell of N L R B v Sinclair Co , which was
one of the five cases before the Court in Gisse!!
• "It is found further that, at the very least, the "intermediate situation'
referred to in Guse!l exists here and that the likelihood that the use of
traditional remedies will insure a fair election is so slight that, on balance,
resort to the cards as a basis for finding a violation of Section 8(a)(5) and
issuing a bargaining order is warranted
"In view of the Respondent 's numerous and serious violations of Section
8(a)(I) and (3) of the Act, I would recommend a bargaining order as a
remedy for those violations, even if no violation of Section 8(a)(5) were
found Irving Air Chute Company, Inc, 149 NLRB 627, Frito-Lay, 169
NLRB No 115, Heck's Inc, 172 NLRB No 255, N L R B v Gisse!!
Packing Co , Inc , supra
DIAMOND STANDARD FUEL CORP. 707
3 The following employees constitute a unit
appropriate for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act
All truckdrivers employed by Respondent at Windham,
New Hampshire, excluding -office clerical employees,
mechanics, the tireman, and the serviceman, guards,
professional employees and supervisors as defined in the
Act -
4 At all times since September T1, the' Union has been
the exclusive , representative' of the employees in the
aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment
5. By refusing on' September 13 and thereafter to
bargain with the Union as the exclusive representative of
the employees in the said appropriate unit, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act
6 By laying off Christiansen, Morley, Nugent, Reed,
Richmond, Rodgers,' Russell, 'and Spade to discourage
membership in the Union,, Respondent has violated
Section 8(a)(3),of the Act
7 By the foregoing conduct, .by interrogating . its
employees about their union. activities, and by threatening
them with discharge if they engaged in such activity,
Respondent has interfered with, restrained and coerced its
employees in -the exercise of the -rights guaranteed to them
by Section 7 of the,Act-and thereby has violated Section
8(a)( I) of the Act
8 The aforesaid unfair labor
practices affecting commerce
Section 2(6) and (7) of the Act
2 Take the following affirmative action, which is
,deemed necessary,to effectuate the policies of the Act
(a) Make whole Vincent Christiansen, George Nugent,
Bruce Morley, Ronald Reed, Fred, Richmond, William
Rodgers, William, Russell, and -Ralph Spade, for any loss
of pay they may have suffered by reason of the
discrimination against them by payment to each of them
of a sum of money equal to the amount he normally
would have earned as wages from the date of his layoff to
the date that he was offered reinstatement, in the manner
set forth in the section of this Decision entitled "The
Remedy " ,
(b) Upon request bargain, collectively with Chauffeurs,
Teamsters, Warehousemen and Helpers, Local Union No
633 of New Hampshire, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative' of all the
employees in the appropriate unit described above, and, if
an understanding is reached, embody such understanding
in a signed agreement. t
(c), Post at its Windham, , New, Hampshire, -garage,
copies of the attached notice marked "Appendix ""
Copies of said notice, on, forms provided by the, Regional
Director for Region 1, shall be signed by Respondent's
authorized representative, and posted by the 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 the
Respondent to insure that 'said notices are not altered ,
practices are unfair labor defaced, or covered by any other material
within the meaning of (d) Notify the Regional Director for Region I, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.25
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, Diamond Standard
Fuel Corp., Windham, New Hampshire, its officers,
agents, successors, and assigns, shall be required to
1. Cease and desist from
(a) Interrogating its employees about their union
activities.
(b) Threatening its employees with loss of jobs or
economic benefits if they become members of, or assist,
Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No 633 of New Hampshire, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
(c) Laying off employees or otherwise discriminating
against them in order to discourage membership in that
labor organization or any other labor organization
(d) Refusing to recognize and bargain with Chauffeurs,
Teamsters, Warehousemen and Helpers, Local Union No
633 of New Hampshire, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive representative of its employees in
the following units
All truckdrivers employed by Respondent at Windham,
New Hampshire, excluding office clerical employees,
mechanics, the tireman, the serviceman, guards,
professional employees and supervisors as defined in the
Act
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act
In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" and in the first paragraph of
the notice the words "a Trial Examiner or' shall be deleted In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial at which all sides had the chance to give
evidence, a Trial Examiner of the National Labor
Relations Board has found that we violated the National
Labor Relations Act, and has ordered us 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 representative of
their own choosing,
To act together for collective bargaining or other
mutual aid or protection, and
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To refrain from any and all of these things
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT ask you whether you favor,Chauffeurs,
Teamsters Warehousemen and Helpers, Local Union
No. 633, of New Hampshire a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union
WE WILL NOT threaten you with loss of your job or
any benefits you now enjoy if you become a member or
help that Union or any other union
WE WILL NOT lay you off, discharge you, or cause
you any other loss to discourage membership in that
union or any other union
WE WILL pay Vincent Christiansen, George Nugent,
Bruce Morley, Ronald Reed, Fred Richmond, William
Rodgers, William Russell, and Ralph Spade any money
they lost as a result of being laid off on September 19,
1968, with interest at 6 percent
WE WILL recognize Chauffeurs, Teamsters,
Warehousemen and Helpers, Local Union No 633 of
New Hampshire, a/w International Brotherhood- of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the only collective bargaining
representative of our employees in the bargaining unit
which is-
All truckdrivers employed by us at Windham, New
Hampshire, excluding mechanics, the tireman, the
serviceman, office clerical employees, guards,
professional employees and supervisors as defined in
the Act
WE WILL bargain on request with Chauffeurs,
Teamsters, Warehousemen and Helpers, Local Union
No 633, of New Hampshire, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, on wages, hours, and
conditions of employment and any agreement we reach
will be put in writing and signed
All our employees are free to join or not to join
Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No 633, of New Hampshire, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
DIAMOND STANDARD
FUEL CORP
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with•its provisions, they may communicate
directly with the Board's Regional Office, 20th Floor,
John F. Kennedy Federal Building, Cambridge & New
Sudbury Streets, Boston, Massachusetts 02203, Telephone
223-3353