Direct Transit

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 629 (N.L.R.B. 1992)

629
309 NLRB No. 95
DIRECT TRANSIT
1 On July 27, 1992, Administrative Law Judge James L. Rose
issued the attached decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a brief in support of
the judge’s decision.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent also asserts that under the Supreme Court’s deci-
sion in Textile Workers v. Darlington Mfg. Co., 380 U.S. 253
(1965), it was free to close its Daggett, California facility so long
as the closure did not chill unionism at its remaining facilities—evi-
dence which it alleges the General Counsel did not show. We find
the Respondent’s reliance on Darlington misplaced because the hold-
ing in that case, in relevant part, applies to a partial closing of a
business rather than, as here, a relocation of work. Work relocations
have been ‘‘explicitly distinguished from partial closings in Darling-
ton and have been found consistently to violate Section 8(a)(3) when
motivated by antiunion animus.’’ Lear Siegler, Inc., 295 NLRB 857,
860 (1989). Thus, there is no need to show a chill on unionism at
the remaining facilities.
3 We agree with the judge that a bargaining order is warranted to
remedy the Respondent’s misconduct under NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). The Respondent’s unfair labor practices
included coercive interrogations, multiple threats of plant closure,
and the actual closure of its California maintenance facility. The se-
verity of the Respondent’s misconduct is further underscored by the
fact that the drastic measure of closing its facility was carried out
pursuant to instructions from top management officials at its head-
quarters office. In addition, the Respondent’s closure violation,
which is among the most flagrant of unfair labor practices and which
threatens the livelihood of employees, occurred within days of the
employees’ commencing active solicitation for the Union and it af-
fected the entire unit.
We are convinced that the Respondent’s unfair labor practices are
of the type that have lingering effects and are not readily dispelled
by traditional remedies. Further, the restoration of the facility (which
we order) would not itself provide the basis for a free and fair elec-
tion. Employees would still have on their minds the drastic measure
that Respondent took to punish employees for their efforts to
unionize. Accordingly, we agree with the judge that an election
would not reliably reflect genuine uncoerced employee sentiment
and that a bargaining order is necessary and appropriate to protect
majority sentiment which was expressed through authorization cards.
Kona 60 Minute Photo, 277 NLRB 867 (1985); Quality Aluminum
Products, 278 NLRB 338 (1986); Reno Hilton, 282 NLRB 819
(1987).
4 Contrary to the Respondent’s contention, we agree with the
judge’s proposed remedy requiring the reopening of its maintenance
facility in Daggett, California. We shall, however, permit the Re-
spondent to introduce evidence at the compliance stage of this pro-
ceeding to demonstrate that reopening of the facility is unduly bur-
densome.
The judge’s recommended Order and notice to employees inad-
vertently omits affirmative language requiring the reinstatement of
Ivan Elvik to the position of leadman and a make-whole remedy for
his unlawful demotion from that position. Accordingly, we modify
the judge’s recommended Order and the notice to provide for this
remedial relief.
Direct Transit, Inc. and Teamsters Local Union No.
166 a/w International Brotherhood of Team-
sters, AFL–CIO. Case 31–CA–19095
November 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
This case presents the issue of whether the Respond-
ent committed violations of Section 8(a)(1) and (3) by
engaging in various actions, including the closure of its
California maintenance facility, in response to the
Union’s organizing effort, and whether a bargaining
order and the reopening of the Respondent’s mainte-
nance facility are appropriate remedies.1
The Board has considered the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions3 and to
adopt the recommended Order.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Direct
Transit, Inc., Daggett, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the paragraphs accordingly.
‘‘(b) Offer Ivan Elvik reinstatement to his former
position of leadman and make him whole for any
losses he incurred as a result of his unlawful demo-
tion.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that
we violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT shut down a maintenance facility and
terminate our employees because they seek union af-
filiation for purposes of collective-bargaining represen-
tation.
WE WILL NOT demote an employee from a leadman
position because of his activity on behalf of union or-
ganization.
WE WILL NOT threaten employees with shop closure
because of their interest in or activity on behalf of the
Union.
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Following the close of the hearing, the Respondent filed a motion
to reopen the record for the receipt of certain documents. Inasmuch
as these documents were in the possession of the Respondent at the
time of the hearing aand no good cause was advanced why they
were not offered then, the Respondent’s motion was denied. 2 All dates are in 1991 unless otherwise indicated.
WE WILL NOT interrogate employees about their in-
terest in or activity on behalf of the Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of the
their rights guaranteed by Section 7 of the Act.
WE WILL reestablish and resume operations at our
Daggett, California facility in a manner consistent with
the level and manner of operation that existed before
the facility was closed on October 6, 1991.
WE WILL offer reinstatement to all employees laid
off on that date who held a position in the following
bargaining unit:
All mechanics, mechanic leadman, mechanic
trainees, and fuel and wash employees employed
at our facility located at 34760 Daggett/Yermo
Road, Daggett, California; but excluding office
clerical employees, guards, and supervisors, as de-
fined in the Act.
WE WILL make them whole for losses they incurred
as a result of the discrimination against them, with in-
terest.
WE WILL offer Ivan Elvik reinstatement to his
former position of leadman and make him whole for
any losses he incurred as a result of his unlawful de-
motion.
DIRECT TRANSIT, INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on May 21 and 22, 1992, at San
Bernardino, California, on the General Counsel’s complaint,
as amended, which alleged that Direct Transit, Inc. (the Re-
spondent or the Company) shut down its Daggett, California
maintenance facility in violation of Section 8(a)(3) of the Na-
tional Labor Relations Act (Act). The Respondent is also al-
leged to have violated Section 8(a)(1), (3), and (5) of the
Act.
The Respondent filed an answer generally denying that it
engaged in any unfair labor practices, and affirmatively con-
tends that the termination of business at the Daggett facility
was motivated solely by economic considerations.
All parties were represented by counsel and were given the
opportunity to call, to examine and cross-examine witnesses,
and to file posthearing briefs. On the record as a whole,1 in-
cluding my observation of the witnesses, briefs, and argu-
ments of counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Iowa corporation engaged
ininterstate trucking, with its principal office located in North
Sioux City, South Dakota. In the conduct of its business, the
Respondent annually sells and ships goods or services valued
in excess of $50,000 directly to customers located outside the
State of South Dakota and annually derives gross revenues
in excess of $500,000. The Respondent admits, and I find,
that it is an employer engaged in interstate commerce within
the meaning of Section 2(6) and (7) of the Act.
Teamsters Local Union No. 166 a/w International Brother-
hood of Teamsters, AFL–CIO (the Union or the Charging
Party) exists for the purpose of representing employees of
employers engaged in interstate commerce and was the des-
ignated representative of certain employees of the Respond-
ent concerning wages, hours, and other terms and conditions
of employment. I conclude that the Union was at all times
material a labor organization within the meaning of Section
2(5) of the Act.
II. THE FACTS
Edgar Foster, the Respondent’s vice president for mainte-
nance, testified that in 19912 the Company employed about
1100 drivers, and had nearly that many trucks. In 1991 the
Company added about 180 trucks to its fleet in addition to
buying a fleet of refrigerated equipment formally belonging
to the bankrupt J. H. Ware Company.
Foster also testified that the maintenance facility at
Daggett, California (near the intersection of Highways I-40,
I-15, and State 58 in southern California), was opened in
May 1988 and became its sixth such facility. The others are
at Moosic, Pennsylvania; Portage, Indiana; Fulton, Missouri;
Louisville, Ohio; and, North Sioux City, South Dakota.
At the time material to this case, employed at Daggett
were Service Manager Terry Harris, his assistant, Craig
Koceski, and 15 employees in the bargaining unit, infra. The
facility was open 24 hours a day, 7 days a week, with each
shift typically maned by three employees. The Daggett em-
ployees were to fuel, wash, and otherwise service the Re-
spondent’s trucks and perform scheduled and minor mainte-
nance as needed. With the closure of the Daggett facility,
these services are performed elsewhere. The fueling is done
under contract with oil companies, and the maintenance is
deferred until the truck returns to one of the Respondent’s
other maintenance facilities.
In September organizing activity began for the Union with
employee Ivan Elvik contacting the Union. He went to the
Union’s office, talked to a business agent, and received some
authorization cards to be circulated among employees. On
September 19 he began passing out cards, seven of which
were signed and returned that day. Another three were signed
on September 20 and 22 and October 7.
On September 26, counsel for the Union filed a petition
in Case 31–RC–6871 and on that day sent a letter demanding
recognition to Chuck Petersen, the Respondent’s owner, with
a copy to Harris. Foster testified that Harris called when he
received the Union’s letter, which he sent on via overnight
express and ‘‘I believe we got that in our office on a Mon-
631DIRECT TRANSIT
3 Although the layoff announced by letter of September 30 was,
I believe, motivated by the employees’ union activity and was there-
fore violative of Sec. 8(a)(3), its effect became moot with the clo-
sure announcement of October 5. Therefore, the initial layoff notice
will not be further considered.
day; and I believe, also, the same day, September 30th of
‘91, we also got our own copy, or the next day.’’
On September 30, Foster wrote Harris stating that effective
October 11, five named employees would be laidoff. Then on
October 5, Foster wrote that the Daggett facility would be
closed immediately; thus, effective at 6 p.m. on October 5,
15 named employees were laid off. (These 15 constituted the
entire bargaining unit.)
In brief, the General Counsel alleges that closure of the
Daggett facility was the result of employees union activity,
and an attempt by the Respondent to avoid recognizing and
bargaining with the Union in violation of Section 8(a)(3) and
(5) of the Act. Foster testified that the union activity had
‘‘not a lot’’ significance with regard to closing Daggett. The
Respondent contends that the Daggett facility was closed
solely for economic reasons.
The General Counsel also alleges that certain statements
made by Harris and Koceski were violative of Section
8(a)(1) and that the demotion of Elvik on September 29 was
violative of Section 8(a)(3). The Respondent denies these
statements were made or that it engaged in any of the viola-
tions alleged.
III. ANALYSIS AND CONCLUDING FINDINGS
A. Closure of the Daggett Facility3
Although I do conclude, infra, that Harris and Koceski
demonstrated animus toward the Union, such is not critical
to my analysis of the closure issue since the decision to close
was made by Foster without, apparently, any input from ei-
ther Harris or Koceski. They credibly testified that they were
suprised by this turn of events, neither having been given
any indication from Foster that closure of Daggett was under
consideration or that there was an economic problem in-
volved in the California business.
Of critical significance is the timing of the Respondent’s
decision to close Daggett with the employees’ union activity
and the lack of evidence that there was any business neces-
sity for doing so.
Foster learned of the union activity and the Union’s de-
mand for recognition probably on Saturday, September 28.
He testified that Harris called him on receiving the demand
letter and sent it on to North Sioux City by overnight mail.
It was received on September 30. On that day the copy sent
directly to North Sioux City was received. Foster’s first letter
to Harris that five employees would be laid off on October
11 was mailed on September 30. The letter telling Harris to
close the facility and lay off all the employees effective Oc-
tober 5 was transmitted on October 5 and received that day.
Although Foster testified that he had been arguing to close
Daggett for over a year, clearly the decision to close was a
reaction to the employees’ union activity. According to Har-
ris, Foster never told there was any kind of cost problem as-
sociated with operation of the Daggett facility. No steps had
been taken prior to September 30 to close it. To the contrary,
in September three employees were hired (including one on
September 30), and plans were being made to train the
Daggett employees to work on the newly acquired refrig-
erated trucks.
Until the employees designated the Union as their bargain-
ing representative and the Union made a demand for recogni-
tion, the Respondent engaged in business as usual at Daggett.
When Foster learned of the union activity, he set in motion
the layoff of five employees. Then a few days later, he or-
dered the shutdown of the facility. There was no forewarning
of these events. From these facts the conclusion is inescap-
able that Foster was motivated by the employees’ union ac-
tivity. Thus, without more, and irrespective of the
unpersuasive economic defense, the General Counsel estab-
lished a prima facie case of an 8(a)(3) violation.
Additionally, I note that the Respondent’s economic jus-
tification for closing Daggett does not bear scrutiny. From
this it may be inferred that the Respondent’s true motive was
one it sought to hide—namely, the employees’ union activ-
ity. Shattuck Denn Mining Co. v. NLRB, 362 F.2d 466 (9th
Cir. 1966). Further, the insufficiency of evidence offered at
the hearing by the Respondent to support its affirmative de-
fense may be considered in concluding that the General
Counsel established a prima facie case of unlawful conduct.
Golden Flake Snack Foods, 297 NLRB 594 (1990).
The burden became the Respondent’s to prove that the em-
ployees’ union activity did not motivate its act, or that it
would have closed the Daggett facility when it did had there
been no union activity. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st. Cir. 1981), cert. denied 455 U.S.
989 (1982).
The Respondent sought to meet this burden by arguing
that economics and not union activity was the motivating
consideration in closing Daggett. The problem, as testified to
by Foster, was too much competition for loads coming out
of California. He testified that California is a net importer of
goods, thus it is relatively easy to obtain incoming loads at
productive rates. However, because there is less business
available going out, in order to avoid long layovers for driv-
ers or leaving California empty, the Respondent had to lower
its rates. This means that expenses for California runs exceed
revenues.
There are three problems with the Respondent’s economic
argument as presented by Foster: (1) the only evidence of
losses on California related runs is an unpersuasive document
styled ‘‘Direct Transit, Inc. 1991 Milage Analysis
Revenue/Expenses’’; (2) closing the Daggett facility could
not address the alleged losses incurred on California trips be-
cause the work done there is still being done, but at other
facilities, and there is no evidence that expenses at Daggett
exceeded expenses at the others; and (3) the Respondent con-
tinues unabated to do business in California.
The document purporting to show the Respondent’s reve-
nues and expenses each month in 1991 does not set forth
California expenses. There is a column giving companywide
expenses and one for companywide revenues. A third column
is California revenues. Subtracting the California revenues
from the companywide expenses yields a net loss for Califor-
nia related trips in 1991 of $1,395,246. But this assumes that
California expenses are identical to companywide expenses
and there is no evidence, even in Foster’s testimony, to sup-
port such an assumption.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, the Respondent offered no evidence that expenses
attendant to operating the Daggett facility exceeded expenses
which would be incurred in any event. The Respondent did
not explain how operating the facility at Daggett added to its
losses on California related trips, or offer evidence that such
was the case. As Foster testified, a maintenance facility such
as Daggett is not revenue producing. It is ‘‘a necessary
evil.’’ Trucks need to fueled, serviced, and maintenance per-
formed. If such is not done at Daggett, it must be done else-
where. Foster agreed that the work done at Daggett by bar-
gaining unit employees is now being performed at other
maintenance facilities and other facilities have added em-
ployees.
Even if the Company did suffer losses on California trips,
there is no evidence that such was the result of costs at
Daggett. The work that had been done at Daggett is still
being done, but there is no evidence that it is now being
done at less cost. Nor is there evidence that the Company’s
losses on California related trips became less after the clo-
sure of Daggett.
It is possible that the location of Daggett in relation to the
Respondent’s total California business was not optimum. It
is also possible that California employee benefit laws and
employer taxes would have a greater impact on the Respond-
ent’s expenses than the laws of other states. But there is no
evidence that either of these possibilities is the case.
Finally, the Respondent continues to do business in Cali-
fornia. Foster testified he thought the Company is now mak-
ing fewer runs into California, but there is no evidence of
this and his testimony was vague and ambiguous. As far as
I am able to determine from the record in this matter, the
Respondent continues to do the same level of business in
California as prior to the closure of Daggett. In fact, accord-
ing to the testimony of Foster, the Company’s profitability
on California related runs is better now than in 1988 before
the Daggett facility was opened.
If the Respondent was losing money on California related
runs, it could have ceased doing business in California. But
it did not. Instead the Respondent closed the Daggett facility,
which, on this record, could not have solved the problem.
Citing the well-known downturn in the national economy,
and in that of California in particular, the Respondent argues
that its decision to close the Daggett facility was the result
of a change in the nature and direction of its business. There-
fore, under the authority of First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981); and Otis Elevator Co.,
269 NLRB 891 (1984), it was permitted to do so.
The problem with this argument is that the Respondent did
not in fact change the nature and direction of a significant
facet of its business. Its business is interstate hauling, includ-
ing runs into and out of California. None of this has
changed. The only thing the Respondent changed as the re-
sult of closing Daggett involved where certain service and
maintenance work would be performed. But there is no evi-
dence that the service and maintenance functions performed
at Daggett were consolidated at other facilities for economic
reasons or that in making such a consolidation the Respond-
ent reduced overall service and maintenance costs.
I therefore reject the Respondent’s argument that closing
Daggett was the type of entrepreneurial decision con-
templated by First National Maintenance, supra, and Otis El-
evator, supra.
Because the Respondent did not prove in general that Cali-
fornia expenses exceeded revenues, nor specifically that the
expenses attendant to operating the Daggett facility exceeded
those which would have been incurred in any event, and be-
cause the Respondent continues to do business in California,
I conclude that its economic defense is false.
The decision to close Daggett was clearly done without
planning. Employees were hired within a few days of the
closure decision. Harris was given no advanced notice. Fur-
ther, Foster first decided to lay off five employees, then a
few days later, decided to close the facility. These factors
tend to prove that closure was a reaction to the employees’
union activity.
From this, and the unpersuasive economic argument, I
conclude it was the union activity which motivated the Re-
spondent’s action. I therefore conclude that by closing the
Daggett facility, the Respondent violated Section 8(a)(3) of
the Act.
Further, I conclude that as of September 30, the Union
represented an uncoerced majority of the Respondent’s em-
ployees in an appropriate bargaining unit (9 of the 15 em-
ployees in the unit had signed authorization cards) and the
Respondent should be ordered to recognize and bargain with
the Union.
B. The 8(a)(1) Allegations
1. Interrogation by Harris
Employee Dave Pedersen testified that on September 20
Harris said to him, ‘‘Between you and I—not counting the
company—just between you and I, have you heard anything
about the union.’’ Petersen said he had, that Ivan Elvik had
given him a card the night before and he had signed it.
Pedersen also testified that about 30 to 45 minutes later,
Harris asked him if Elvik had been bothering him to sign a
card at work during working hours; and, a short time later,
Harris asked Pedersen if Elvik had been badgering him at
work.
The next day, Harris asked several employees, with Peter-
sen present, who all had signed union cards.
Harris generally denied that he interrogated or questioned
anyone about their union activity; however, he did not spe-
cifically deny the testimony of Petersen or conversations
with Petersen on September 20 and thereafter.
I found Petersen to be a credible witness. Harris was not.
For instance he was evasive on a matter about which there
could be no doubt and others, including Koceski, testified—
that three employees wore union baseball caps on September
30. Harris testified that he did not recall seeing them or that
he ‘‘might have.’’
I conclude that Harris made the statements attributed to
him and he thereby violated Section 8(a)(1) by interrogating
employees concerning their protected activity.
2. Threats by Harris
During the September 21 conversation Harris had with
several employees, he ‘‘talked about what kind of jobs we
would be having after the terminal closed down.’’ Petersen
testified that Harris talked about ‘‘how hard the jobs are to
find in California right now and, before he left, he turned
around and called me traitor and left.’’
633DIRECT TRANSIT
As with the interrogation by Harris, I found Petersen to be
credible and conclude that Harris in fact threatened employ-
ees that the facility would be shut down because they had
signed union authorization cards and thus violated Section
8(a)(1). I note that Harris did not deny these statements.
Employee Charles Thorpe testified that about 3 days after
he signed an authorization card, he and two other employees
were present when Harris was talking to Koceski about
‘‘signing the card saying that he was going to try find out
who signed it and take the action of writing him up.’’
Harris did not testify about this event, nor did Koceski,
however, Koceski did testify that he talked to Harris about
the union activity on several occasions.
I conclude that Harris made the statement attributed to him
by Thorpe. Though directed to another supervisor, since em-
ployees were present, the statement by Harris constitutes a
threat in violation of Section 8(a)(1).
Elvik testified that on October 1, after learning of the lay-
off notice of September 30, he approached Harris and said
he would resign and ‘‘call the whole thing off.’’ Harris told
him in effect that it was too late, ‘‘He knew that Chuck (Pe-
terson) wouldn’t go for it; that he would close down; that he
didn’t want the drivers getting a hold of it.’’
Elvik was a credible witness and I conclude that Harris
made the statements attributed to him, which I conclude con-
tained a threat in violation of Section 8(a)(1) of the Act.
3. Threats by Koceski
Employee Curtis Smith testified that he talked to Koceski
about the Union on September 30, the first day employees
wore union hats. Koceski ‘‘expressed disfavor with unions
and then said that they would close the shop before bringing
the union in—or, letting the union come in.’’
Koceski testified that he probably did talk to employees
about unions ‘‘when we found out what was going on.’’ And
he would have recounted his negative experiences and gen-
erally that he is antiunion. Koceski did not deny the state-
ments attributed to him by Smith.
I conclude that Koceski threatened employees with shop
closure in violation of Section 8(a)(1) of the Act.
C. The Demotion of Ivan Elvik
Ivan Elvik began employment at the Daggett facility in
November 1988 as a mechanic trainee. Three months later he
was promoted to mechanic and then to parts manager, a job
he held about 1 year. He was then promoted to assistant
manager. After about 6 months, he stepped down and be-
came a leadman, which job he held until demoted on Sep-
tember 29. The parties stipulated that leadman is a bargain-
ing unit position. The parties also agree that the demotion
was on September 29, notwithstanding an exhibit which indi-
cates September 10.
As noted above, in August, employees began discussing
the possibility of a union and on September 18 Elvik went
to the union hall and obtained authorization cards which he
began passing out to employees on September 19.
On Sunday, September 29, Elvik arrived at work and was
then told by Koceski that he had been demoted to mechanic.
Koceski told Elvik something to the effect that the reason for
the demotion was his leadership ability.
During Harris’ interrogation of Petersen on September 20,
Petersen said that he had received an authorization card from
Elvik. Thus, Harris knew that Elvik was instrumental in the
organizing effort. He demoted Elvik without warning 10 days
after learning of this from Petersen and within a day or two
after the Union demanded recognition. Elvik had been a
long-term employee (for this facility) and apparently had
done more than acceptable work as demonstrated by his pro-
motions.
From these factors I conclude that the General Counsel
made out a prima facie case that Elvik was demoted for rea-
sons proscribed by Section 8(a)(3). Therefore the burden
shifts to the Respondent to establish that union activity was
not the motivating factor or that Elvik would have been de-
moted in any event. Wright Line, supra.
Harris testified that he demoted Elvik because he caught
Elvik, Ron Moore, and Mitch Walker playing cards on duty.
Though unclear from his testimony, it appears that Harris
gave each a disciplinary warning and a 1-day suspension
upon learning of the card playing; then, when this was con-
firmed by a driver at the end of September, he demoted
Elvik. Though Harris testified that he had given each some
kind of a writeup, no such document was offered into evi-
dence by the Respondent. Nor did the Respondent offer the
alleged statement from the driver.
However, Elvik admitted that twice in early September he
was caught playing cards, signed at least one disciplinary
sheet, and 2 weeks after the second occasion he was de-
moted.
Koceski informed Elvik of the demotion. He testified that
the reason was Elvik’s ‘‘failure to perform his—his duties up
to the minimum standards that were set. In addition, he was
caught playing cards instead of getting the job done. There
was numerous paperwork items that weren’t being filled out
properly, and he’d been counseled on it several times, and
just didn’t improve.’’
The poor performance reason advanced by Koceski ap-
pears to have been an afterthought for purposes of the hear-
ing rather than a reason. It was not corroborated. Indeed,
Harris did not testify that such was a consideration. Nor is
there any evidence that Elvik had other than an excellent
record as an employee and a leadman.
No doubt the card-playing incident occurred; but, on this
record I conclude that Harris would not have demoted Elvik
for it absent Elvik’s union activity. The card playing incident
for which Harris claims he demoted Elvik occurred in early
September, and before Elvik engaged in any union activity.
He was given a warning and this apparently ended the mat-
ter. Only after Elvik circulated authorization cards and the
Union demanded recognition did Harris revive the card play-
ing and demote Elvik.
I do not credit Harris and Koceski. I find their testimony
concerning the purported reason for demoting Elvik
unpersuasive. I conclude that the Respondent has failed to
sustain its burden of proving that Elvik would have been de-
moted even absent his union activity. I conclude that by de-
moting Elvik on September 29, the Respondent violated Sec-
tion 8(a)(3) of the Act.
THE REMEDY
Having concluded that the Respondent engaged in various
unfair labor practices, I recommend that it be ordered to
cease and desist therefrom and take certain affirmative ac-
tion.
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Although unclear from the record, it appears that Gilroy Cordova
ceased work on October 3, after learning that he would be laid off
on October 11. His backpay should commence as of October 3, al-
though he was named in the notice of October 5.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Since the Respondent closed the Daggett facility in viola-
tion of Section 8(a)(3) of the Act, I recommend that it be
ordered to reopen that facility, rehire each of the laid-off em-
ployees, and make them whole for any loss of wages or
other benefits they may have suffered as a result of the dis-
crimination against them, with interest.4 F. W. Woolworth
Co., 90 NLRB 289 (1950); New Horizons for the Retarded,
283 NLRB 1173 (1987). Ivan Elvik will be rehired to the po-
sition of leadman and his backpay calculated using leadman
wages.
There is no evidence that ordering the Respondent to re-
open the Daggett facility would be ‘‘unduly burdensome.’’
Lear Siegler, Inc., 295 NLRB 857 (1989).
Closing a facility and laying off the entire bargaining unit
is clearly the kind of egregious unfair labor practice which
can best be remedied by a bargaining order when a majority
of employees have designated the Union. NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). Thus, the Respondent
will also be ordered to recognize and bargain with the Union
as the duly designated representative of its employees in a
unit appropriate for collective bargaining.
In cases where a facility is unlawfully closed and ordered
to be reopened, the Board requires that the notice to employ-
ees be mailed to them and be published in a newspaper of
general circulation in the area. Lear Siegler, Inc., supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Direct Transit, Inc., Daggett, Califiornia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Shutting down a maintenance facility and terminating
employees because the employees seek union affiliation for
purposes of collective-bargaining representation.
(b) Demoting an employee from a leadman position be-
cause of his activity on behalf of union representation.
(c) Interrogating employees about their interest in or activ-
ity on behalf of the Union.
(d) Threatening employees with shop closure because of
their interest in or activity on behalf of the Union.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reestablish and resume operations at its Daggett, Cali-
fornia facility in a manner consistent with the level and man-
ner of operation that existed before the facility was closed
on October 6, 1991; offer reinstatement to all employees
laidoff on that date who held a position in the following bar-
gaining unit:
All mechanics, mechanic leadmen, mechanic trainees,
and fuel and wash employees employed by the Re-
spondent at its facility located at 34760 Daggett/Yermo
Road, Daggett, California; but excluding office clerical
employees, guards, and supervisors, as defined in the
Act.
Make them whole for the losses they incurred as a result of
the discrimination against them, in the manner specified in
the remedy section above.
(b) Preserve and, on request, make available to the Board
or its agents for examination and coping, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under this Order.
(c) On request, recognize and bargain with the Union as
the exclusive collective-bargaining representative of its em-
ployees in the bargaining unit set forth above concerning
terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
(d) Treat the initial year of union certification as beginning
on the date this Order is complied with.
(e) Mail to each employee in the appropriate bargaining
unit at his or her last known address and cause to be pub-
lished in a newspaper of general circulation in Daggett, Cali-
fornia, after being duly signed by the Respondent’s rep-
resentative, copies of the attached notice marked ‘‘Appen-
dix.’’6
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply with it.