F. M. Transport

National Labor Relations Board - Board Decisions

Mar 24, 1992

306 N.L.R.B. 757 (N.L.R.B. 1992)

757
306 NLRB No. 156
F. M. TRANSPORT
1 The name of this Charging Party has been changed to reflect the
new official name of the International Union.
2 302 NLRB 241.
3 On January 21, 1992, the Board denied the Respondent’s petition
for reconsideration of the Board’s denial of the Respondent’s request
for a fifth extension of time to file cross-exceptions.
4 We shall modify the judge’s reinstatement language to conform
to that traditionally used by the Board and shall order the Respond-
ent to remove from its files any reference to the unlawful discharge
and suspension of discriminatees Wiltse and Connolly.
F. M. Transport, Inc. and United Steelworkers of
America, AFL–CIO and F. M. Transport Em-
ployee Committee, Party in Interest
F. M. Transport, Inc. and Edward Connolly and
Teamsters Local Union No. 124, a/w Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Cases 25–CA–17360, 25–CA–17620, and
25–CA–19246
March 24, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 12, 1989, Administrative Law Judge Thom-
as A. Ricci issued a decision in which he dismissed
the complaints. On March 28, 1991,2 the Board re-
versed the judge’s decision dismissing the complaints,
and remanded the proceeding to the judge for a deter-
mination on the merits.
On August 15, 1991, the judge issued the attached
supplemental decision. The General Counsel filed lim-
ited exceptions.3
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this deci-
sion.4
The General Counsel excepted to the judge’s failure
to conclude that the Respondent violated Section
8(a)(2) by forming, dominating, and assisting the F. M.
Transport Employee Committee (the Committee). We
find merit in this exception. In his decision, the judge
found that, at a time when the Steelworkers Union was
organizing the Respondent’s employees, the Respond-
ent’s president, Fred Miletich, ‘‘gathered all the em-
ployees and had them form a committee to deal with
and resolve problems . . . in the conditions of employ-
ment.’’ He also found that Miletich set the number of
employees that would be on the committee, and he
chose both the management and employee representa-
tives for the committee (although he eventually let the
employees choose their own representatives after they
objected to his appointment of the employees). Further,
the judge found that the Committee thereafter estab-
lished new work rules, and addressed and resolved
workday problems such as disciplinary action against
employees and an employee pension plan.
The judge held that the Respondent told the employ-
ees to form the Committee in violation of Section
8(a)(2) and (1) of the Act. He failed, however, to pro-
ceed to draw the legal conclusion that the Respond-
ent’s action amounted to domination of the Committee
and interference with its formation in violation of the
Act, and he failed to remedy that violation. We con-
clude that the Respondent dominated the Committee
and interfered with its formation in violation of Sec-
tion 8(a)(2) and (1) of the Act. We shall amend the
conclusions of law accordingly, and order the Re-
spondent to cease and desist from dominating, assist-
ing, supporting, or otherwise interfering with the for-
mation or administration of the Committee or any
other labor organization of its employees. Further, al-
though the judge noted that the F. M. Transport Em-
ployee Committee ceased to exist at the time of these
proceedings, we shall order the Respondent to with-
draw recognition from and to disestablish the em-
ployee committee in the event that it has been reestab-
lished, and to take similar action with respect to any
successor committees.
The General Counsel also excepted to the judge’s
failure to conclude that the Respondent violated Sec-
tion 8(a)(1) by threatening to close the facility if the
employees selected the Union, and by threatening to
discharge employees because of their union activity.
We find merit in these exceptions. The judge credited
the testimony of employees Rinker, Kelley, and
Switzer and found that the Respondent’s president,
Miletich, threatened plant closure and violated Section
8(a)(1). Also, crediting the testimony of employees
Switzer and Connolly, the judge found that Miletich
threatened to discharge employees because of their
union activities in violation of Section 8(a)(1). The
judge’s findings thus support the formal conclusion
that the Respondent violated Section 8(a)(1) by these
actions. Accordingly, we will amend the conclusions
of law and we shall order the Respondent to cease and
desist from engaging in such unfair labor practices.
AMENDED REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order the Respondent
to cease and desist and take certain affirmative action
designed to effectuate the policies of the Act. It shall
offer Robert Wiltse immediate and full reinstatement
to his former job or, if that job no longer exists, to a
substantially equivalent position. It shall also make
whole Robert Wiltse and Edward Connolly for any
loss of pay or benefits they may have suffered by rea-
son of the Respondent’s discrimination against them,
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with backpay to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondent shall
also remove any references to Wiltse’s discharge and
Connolly’s suspension from its files. Sterling Sugars,
261 NLRB 472 (1982). Further, because the violations
of the Act committed by the Respondent are wide-
spread and of such an egregious nature that they evi-
dence a general disregard for its employees’ statutory
rights, we agree with the judge that a broad injunctive
order is warranted. Hickmott Foods, 242 NLRB 1357
(1979).
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 2.
‘‘2. By the foregoing conduct, and by instructing
employees to form a joint committee with management
to resolve working conditions of employment, by dis-
cussing and resolving working condition problems di-
rectly with employees in the committee while a union
organizing campaign was in progress, by questioning
employees as to whether or not they had signed union
cards, by questioning employees as to the reasons why
they had signed union cards, by telling employees that
the company would obtain better insurance benefits if
they abandoned their prounion activity, by telling em-
ployees that the employer knows which employees had
signed union cards, by promising to improve condi-
tions of employment during an organizational cam-
paign after questioning employees as to their reasons
for that activity, by threatening to close the facility if
the employees selected the Union, and by threatening
to discharge employees because of their union activity,
the Respondent has violated and is violating Section
8(a)(1) of the Act.’’
2. Substitute the following as Conclusion of Law 3
and renumber the subsequent paragraph.
‘‘3. By dominating, assisting, supporting, and inter-
fering with the formation and administration of the F.
M. Transport Employee Committee, the Respondent
has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(2) and (1) of
the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, F. M. Transport, Inc., Portage, Indiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or activities on be-
half of United Steelworkers of America, AFL–CIO, or
Teamsters Local Union No. 124, a/w International
Brotherhood of Teamsters, AFL–CIO, or any other
labor organization, by discharging or suspending em-
ployees or otherwise discriminating against them in
their hire or tenure.
(b) Dominating, assisting, supporting, or otherwise
interfering with the formation or administration of F.
M. Transport Employee Committee or any other labor
organization of its employees.
(c) Recognizing the F. M. Transport Employee
Committee, in the event that it has been reestablished,
or any successor, as the representative of any of its
employees for the purpose of dealing with the Re-
spondent concerning wages, hours, or other terms or
conditions of employment.
(d) Instructing employees to form or assist a joint
committee with management to resolve working condi-
tion problems while a union organizing campaign is in
progress.
(e) Discussing and resolving working condition
problems directly with employees in the committee
while a regular union organizing campaign is in
progress.
(f) Questioning employees as to whether or not they
had signed union cards.
(g) Questioning employees as to the reasons why
they had signed union cards.
(h) Telling the employees the Company would ob-
tain better insurance benefits if they abandoned their
prounion activities.
(i) Telling employees that the Employer knows
which employees had signed union cards.
(j) Promising to improve conditions of employment
during a union organizing campaign after questioning
employees as to their economic demands.
(k) Threatening to close the facility if the employees
select the Union as their bargaining representative.
(l) Threatening to discharge employees because of
their union activity.
(m) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Robert Wiltse immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the amended remedy section of the decision.
(b) Make whole Edward Connolly for any loss of
pay or benefits he may have suffered by reason of the
Respondent’s discrimination against him, in the man-
ner set forth in the amended remedy section of the de-
cision.
(c) Withdraw and withhold recognition from and
completely disestablish the F. M. Transport Employee
759F. M. TRANSPORT
5 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.’’
Committee in the event that it has been reestablished,
or from any successor, as the representative of any of
its employees for the purpose of dealing with the Re-
spondent concerning wages, hours, or other terms and
conditions of employment.
(d) Remove from its files any reference to the un-
lawful discharge of Robert Wiltse or the unlawful sus-
pension of Edward Connolly, and notify them in writ-
ing that this has been done and that the discharge and
suspension will not be used against them in any way.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its place of business in Portage, Indiana,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discourage membership or activities
on behalf of United Steelworkers of America, AFL–
CIO or Teamsters Local Union No. 124, a/w Inter-
national Brotherhood of Teamsters, AFL–CIO, or any
other labor organization, by discharging or suspending
you or otherwise discriminating against you in your
hire or tenure.
WE WILL NOT dominate, assist, support, or otherwise
interfere with the formation or administration of F. M.
Transport Employee Committee or any other labor or-
ganization of our employees.
WE WILL NOT tell employees to form a joint com-
mittee with management to resolve working condition
problems while a union organizing campaign is in
progress.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT question employees as to whether
they have signed union cards.
WE WILL NOT question employees as to their rea-
sons for having signed union cards.
WE WILL NOT tell employees the Company would
obtain better insurance benefits if they abandon any
prounion activity.
WE WILL NOT tell employees that we know which
employees have signed union cards.
WE WILL NOT promise to improve conditions of em-
ployment during a union organizing campaign after
questioning employees as to their economic demands.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Robert Wiltse immediate and full re-
instatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, less any net interim earn-
ings, plus interest.
WE WILL make whole Edward Connolly for any loss
of pay he may have suffered as a result of the dis-
crimination against him, plus interest.
WE WILL withdraw recognition from and will com-
pletely disestablish the F. M. Transport Employee
Committee in the event that it has been reestablished,
or any successor, as the representative of our employ-
ees concerning wages, hours, or any other terms and
conditions of employment.
WE WILL notify Robert Wiltse that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
WE WILL notify Edward Connolly that we have re-
moved from our files any reference to his suspension
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 302 NLRB 241 (1991).
and that the suspension will not be used against him
in any way.
F. M. TRANSPORT, INC.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. This deci-
sion will evaluate and pass judgment on evidence received
during three hearings held in a consolidated proceeding over
a 3-year period. There is no need to detail here the exact
dates when charges were filed, when complaints were issued,
or precisely what vacillating contentions of various parties
were over the years. Those matters are precisely set out in
my earlier decision, where I dismissed the entire proceeding
because of lack of due process. The Board then ordered a de-
cision based solely on the evidence received.1
The evidence was received on three separate occasions—
October 27, 28, and 29, and June 29 and 30, 1986; June 29
and 30, 1988; and November 29 and 30, 1988.
On the entire record and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
F. M. Transport, Inc., a State of Indiana corporation with
its principal office and place of business in Portage, Indiana,
is engaged in the interstate transportation of freight and com-
modities. During a 12-month period preceding June 1985, in
the course of its business it derived gross revenues in excess
of $50,000 for the transportation of freight and commodities
from the State of Indiana directly to points outside the State.
During that same 12-month period, it purchased and received
at its Indiana facility goods and materials valued in excess
of $50,000 directly from points outside the State of Indiana.
I find that the Respondent Employer is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
I find that United Steelworkers of America, AFL–CIO,
and Teamsters Local Union No. 124, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There were two attempts to organize the employees of the
Respondent—one in 1985 by the Steelworkers and another in
1988 by Teamsters Local 124. The transcript record is re-
plete with evidence that the Company, acting primarily
through Fred Miletich, its president, made a continuous at-
tempt to prevent any legitimate outside organization from
representing its employees. As will appear below its agents
committed continuous violations of Section 8(a)(1), against
both the Steelworkers and the Teamsters.
But before getting to that part of the case, which falls in
the usual issues presented in Board proceedings, there is an
ambivalent and confusing element raised by the General
Counsel that must be resolved at the outset to clarify the en-
tire situation.
The hearing in 1986 extended over 3 full days. There was
testimony about employees engaging in union activity in
favor of the Steelworkers Union, but no signed authorization
cards were offered in evidence, no statements were made
about any appropriate bargaining unit, about majority, about
demand for recognition—in short Section 8(a)(5) of the stat-
ute was not involved at all in the entire proceeding.
The record in its entirety shows very clearly that the em-
ployees involved did not really care for the Steelworkers, and
equally as clear, that all union activity of any kind ceased
by the end of 1985.
Three years later, in 1988, the employees started to join
Local 124 of the Teamsters. During the 3 days of testimony
taken in 1988, the General Counsel proved that the employ-
ees had engaged in that pro-Local 124 activity, and that the
Respondent again illegally interfered with that protected ac-
tivity by many violations of Section 8(a)(1) of the Act. One
of the principal witnesses in support of the complaint added
to the consolidated proceeding was Gary Proctor, the orga-
nizing officer of Local 124. He explained in clear detail how
at several meetings of the employees he obtained from a ma-
jority of the employees in the appropriate unit—16 out of 22
or 24—regularly signed authorization cards and put them all
in the hands of the General Counsel in support of their peti-
tion for an election filed by his union before the hearing took
place.
At that same hearing in 1988, the General Counsel for the
first time asserted that 3 years earlier, in 1985, the Respond-
ent company had refused to bargain with the Steelworkers
and had therefore violated Section 8(a)(5) of the Act. Before
that time there had never been any charge, complaint, any
contention whatever, either that the Steelworkers had re-
quested recognition in 1985, that it had represented a major-
ity, or that Section 8(a)(5) of the Act was to be considered
at all.
There are many reasons for rejecting the General Coun-
sel’s request for an affirmative bargaining order today in
favor of that union. I will speak only of one, which is suffi-
cient.
These employees drive trucks to various steel mills and
other steel products manufacturing companies. Their trucks
are loaded by employees of those steel mills, all of whom
are represented by the Steelworkers Union. There is testi-
mony showing clearly that these employees signed cards, on
their face showing membership in the Steelworkers, because
they were told that if they could not show membership cards
in that Union, the employees at the steel mills where they
had to go every day would either refuse to load their trucks
or delay the loading to the point where these drivers would
lose part of their income.
The General Counsel offered 11 signed membership cards
in favor of the Steelworkers in evidence. The employees who
signed three of them testified at the 1988 hearing. Donald
Puent said no one ever told him his truck would not be load-
ed at the steel mills if he did not sign that card. Mel Pergler
gave the following testimony.
761F. M. TRANSPORT
That union card I did not know at the time was a union
card. Carl Kelley and Bob Tatros sat up there at Bob
Tatros’ office in Detroit, and told me straight to my
face that all these steel haulers had to have these cards
to get into the mills. If you didn’t have these cards, you
wouldn’t get your truck unloaded. I didn’t know it was
a union card. If I’d known it was a union card, I
wouldn’t have signed it, because I don’t want—I’ve
had screw jobs from a union. I want nothing to do with
the Union.
Everett Gudenschwager, another employee, quoted the so-
licitors as telling him in order to induce him to sign: ‘‘they
said we might have problems getting loaded in the mills, es-
pecially at U.S. Steel . . . if we weren’t signed up.’’
The remaining cards for the Steelworkers were placed into
evidence through George Sullivan, the Steelworkers orga-
nizer. He said he saw all these employees sign these cards.
His first comment about how he solicited the signatures was
to deny having said anything to anyone about not being load-
ed at the steel mills. And then came what I consider a direct
admission by the principal General Counsel’s witness that
these cards were all obtained by illegal threats and therefore
do not support the General Counsel’s assertion of majority
status on the part of the Steelworkers.
Q. said you sent some kind of little blue card with
it?
A. Yeah. If it says there was a card with that there
probably was, yeah.
Q. And it says ‘‘please keep this card with you, as
you may be asked for it in the mills in the near fu-
ture.’’ What do you have reference to there, Mr. Sul-
livan?
A. Just exactly what it says.
Q. What do you mean ‘‘You’ll be asked for this in
the mills in the near future?’’ What were you talking
about?
A. That’s what I meant, I was talking you may be
asked to show the card in the mill.
Q. To show the card. Who would ask them to show
the card?
A. The loaders.
Q. The loaders. Who are the loaders?
A. The people that load the trucks in the mills.
Q. Are they employees in the steel mills?
A. They’re Steelworker members.
Q. Steelworker Union members. Was there some
kind of communications steelworker to union members
to say—to ask drivers for these blue cards?
A. No.
Q. Were you thinking about instruction
A. Yes. Yes.
Q. Steelworkers to ask for those blue cards?
A. Yes, we were.
Q. Is that correct?
A. Yes.
Q. And did you later start communicating with steel-
worker loaders to ask for those cards?
A. I don’t want to answer that question, but I
guess—because it involves something else other than
this case.
JUDGE RICCI: You know you have to speak up so
you can be heard.
MR. SHEERIN: I don’t even know what he said and
he’s—The Witness. I’m considering whether I should
have to answer that question or not.
JUDGE RICCI: What?
THE WITNESS: I don’t . . .
JUDGE RICCI: You’re considering whether you
should answer that question?
THE WITNESS: Yes, I don’t want to answer that
question.
I find that no merit in the complaint allegation, or in the
General Counsel’s contention, that the Respondent in any
way violated Section 8(a)(5) of the statute with respect to the
Steelworkers.
When, early in 1985, the Respondent learned that some
employees were signing up with the Steelworkers, Miletich,
its president, gathered all the employees and had them form
a committee to deal with and resolve problems that existed
in the conditions of employment. He told them there would
be three employee members on that committee for the entire
employee complement, and three management representatives
speaking for the Company. In the extended transcript, there
appear some conflicts in testimony as to exactly what
Miletich told the employees as to his reason for doing that.
But small, minor conflicts in testimony in no way changed
the admitted facts which clearly prove the most outright un-
fair labor practices by the Respondent at that time.
When speaking to the assembled employees Miletich first
said he had chosen three employees to be part of the com-
mittee. The employees then objected to the employer select-
ing their representatives. The president then permitted them
to choose their own. An election took place then and there,
and by a hand vote, three employees were chosen. At the
same time Miletich told them he was chosing four manage-
ment representatives to speak for the employer on the joint
committee—Doris Gelb, Billy, N. Alhouse, and John C. Hall.
There then followed what was really a negotiating meeting
of the joint committee, which went on for many hours.
Among the things discussed were improvement in the dis-
patch procedures, the correct placement of a driver’s name
on the dispatch board after making a delivery, etc. Miletich
presented a new set of work rules for approval, but employee
members for the committee did not like that. As a result
changes were made in the work rules, and finally, the Com-
pany had Alhouse, one of the Company’s members of the
committee, type them up. In the end the agreed-on new rules
were accepted by the entire committee.
In the later meetings of the joint committee other workday
problems were resolved—such as disciplinary action against
an employee, whether a driver who had been involved in an
accident should be given one or two disciplinary letters, and
institution of an employee pension plan.
At the time of the last hearing in this proceeding, that
committee had long ceased to function or exist at all. For the
Respondent to have told the employees to form an internal
joint committee to resolve working condition problems—at
precisely the time when the employees were signing up for
the Steelworkers, as management well knew—was a clear
violation of both Section 8(a)(1) and (2) of the Act, and I
so find.
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the numerous complaints filed, and in the General
Counsel’s brief to the Board when asking for a decision
based on the evidence received, he lists at least seven sepa-
rate unfair labor practices as having been committed by the
Respondent on that single day when Miletich held his meet-
ing with the employees to form the joint committee. Six
years after the event, there seems little point in belaboring
the clear unfair labor practice with such double talk. Miletich
‘‘suggested’’ the employees form a committee; was it a sepa-
rate unfair labor practice to have ‘‘convened’’ the meeting
that formed that committee? Does ‘‘recognize’’ and ‘‘bar-
gaining’’ with such a committee amount to two separate un-
fair labor practices? Miletich designated which employees
were being permitted to represent the Union on the com-
mittee. He also, again according to the General Counsel,
‘‘named those individuals who were to be selected.’’
In my considered judgment it is enough to find, as above,
that the Respondent has violated the statute and must not
hereafter repeat the same offense.
Although the confused and protracted record is not clear
as to exactly when certain conversations took place, there is
convincing evidence of Miletich having committed a number
of other 8(a)(1) violations as the years went by, and as the
employees signed up with one union after another. Miletich
denied having spoken some of these antiunion statements. In
the light of the total record and the admitted antiunion activi-
ties of the Respondent, I do not credit Miletich’s denials.
Bill Rinker and Carl Kelley, two employees, spoke to
Miletich in 1985, when the employees were signing up with
the Steelworkers. From Rinker’s testimony:
Me and Carl Kelley went to Fred Miletich. Said
Fred, the men don’t feel that this union, the Steel-
workers Union, is going to do anything for us, for the
simple fact that you don’t want them in here. You’ve
made that plain and clear to us. So what we want to
do is start our own union—the employees, here, and if
we do, will you bargain with us? And he said yes he
would.
Kelley testified that about the same time—in 1985, when
he was soliciting signatures for the Steelworkers—Miletich
called him at home, ‘‘he asked me if I was getting guys to
sign union cards and I said yeah. And he said I would get
in trouble over it and, then, he swore at me a couple of
times, I swore at him a couple of times, and then, I hung
up on him.’’
A few days later, again according to Rinker, Miletich
asked him: ‘‘He asked me if I—if we had all the signatures
signed to get them to say that we didn’t want them in our
union anymore.’’ ‘‘I said, yes, we did.’’ He said, ‘‘well give
me the paper. I’ll give it to my lawyer and then forget about
doing anything else.’’
Rinker also quoted Miletich as saying shortly thereafter
‘‘we decided because he was always saying that he would
never negotiate with the United Steelworkers, he made that
plain and clear.’’
Months later Rinker again had conversation with Miletich
in a local restaurant. ‘‘We were talking about the Union and
when we got up to leave Fred was all upset again about ev-
erything and he said, you know I could close this place and
reopen it under a different name and get rid of all of the
Union.’’
As a witness Miletich denied having said he would never
bargain with the Teamsters or the Steelworkers, or ever hav-
ing said he would bargain with a company union. His testi-
mony also contains the following:
Q. You talked to Mr. Otis Summe?
A. Yes.
Q. Do you recall where it was you talked to Mr.
Summe?
A. I think it was on the premises, company premises.
Q. Alright. And what did you say to Mr. Summe and
what did he say to you?
A. I asked Otis if he was involved, did he sign a
union card. He said he did. Yeah. And I think I asked
him why. He said, ‘‘well, Fred, we’re not going to get
loaded in the mills.’’
. . . .
Q. Now, can you recall when you talked to Don
Morgan?
A. Oh, it was about the same time.
Q. And where did you talk to Mr. Morgan?
A. On the premises.
Q. What did you say to Mr. Morgan and what did
he say to you?
A. Well, I asked him about how it had come about
to signing union cards. And he was told in Detroit
that—somebody walked up to Me—to him, one of the
drivers or somebody, and he just told him ‘‘sign it, be-
cause you ain’t got no choice, because you’re going to
belong to this union anyway, whether you like it or
not.’’ And he signed the union card.
. . . .
Q. Alright. Well, let me ask you this: Did you have
any conversations with Mr. Gary Ross? Did you have
any . . .
A. Yes I did.
Q. Alright. Can you recall where that conversation
took place?
A. It was on a Saturday, if I’m not wrong. I was
down there and I called him. I wanted to talk to him
in the office. And I asked him if he was also involved
in it. He said yeah. He was. I said what is the—what
was the problem? And he basically gave me the same
thing like the other guys, better benefits. Like, he said
that—protection and better benefits and more pay and
all for that.
Q. Did you respond to him at all?
A. Yes, I did.
Q. What did you say to him?
A. I told him that since he come up here begging me
for a job for three weeks, chasing me down—up and
down from restaurant to the place and asking me to
give him his job back, that I didn’t feel that that was
the right move for him, after I did certain things for
Mr. Ross. And that was just about it.
With all this from Miletich himself there is really no ques-
tion of credibility. I certainly credit the employees’ testimony
against his. And I find that by questioning employees wheth-
er and why they had signed union cards, and by threatening
763F. M. TRANSPORT
employees with economic retaliation because of their union
activity, the Respondent violated Section 8(a)(1) of the Act.
In the very heart of the Steelworkers’ signing up activity,
on May 28, 1985, Miletich held a meeting of all employees
where a business agent of the Teamsters Union was present.
This was a few days after he had called Kelley to him and
told him ‘‘he would get in trouble over it.’’ Miletich asked
the assembled employees what their ‘‘problems’’ were, why
they were ‘‘signing union cards.’’ When someone said ‘‘in-
surance’’ was one of the problems, the company president
answered ‘‘he would look into it and if it wasn’t no good,
he would get us some better insurance.’’ Miletich also told
the men ‘‘if the drivers wanted a union, then they could join
710.’’
Miletich said at the hearing that the Teamsters agent’s
name was Oscar Machan. His attempted explanation of that
man’s presence at the meeting which Miletich himself called
just about finishes off any credibility that can be given to his
testimony in this entire proceeding. He said it was only an
old friend who chanced to be passing by. He gave no straight
answer as to whether or not he had invited the man to the
meeting. At one point he even said he did know who had
invited the man.
Miletich admitted the purpose of the meeting was to ‘‘find
out what the trouble was about this . . . the Union activity.’’
He admitted asking the employees what their complaints
were. He admitted telling them he would look into their
complaints about insurance. He ended by saying he could not
remember whether or not the Teamsters agent had talked at
all.
I credit the testimony as to this entire event as given by
the employees. I find that by questioning the employees as
to why they had signed cards in favor of the Steelworkers
Union, by letting them know he knew who had done so (a
direct revelation of surveyance of union activity—Clements
Wire & Mfg. Co., 257 NLRB 206 (1981)), by inviting state-
ments of complaint relative to conditions of employment and
then promising to improve those conditions, etc., the Re-
spondent violated Section 8(a)(1) of the Act.
Between 1986 and 1988 there does not appear to have
been any union activity among these employees. The organi-
zational campaign for the Steelworkers just died away. The
hearing in the Board proceeding was put off by the General
Counsel for no relevant reason, and things seem to have been
quiet.
In 1988 the employees started signing cards to be rep-
resented by Teamsters Local 124. Their activity in this re-
spect reached the point where Local 124 filed a petition for
an election with the Board’s Regional Office, supported by
cards signed by majority of the employees in the appropriate
unit. That petition was still awaiting action at the time of the
last hearing in this case—November 30, 1988.
With this, Miletich resumed his past practice of trying to
put a stop to such activity, regardless of the law which pro-
tects the right of employees to self-organization. Again, from
Kelley’s testimony. He said that 3 days after the Teamsters
Local 124 meeting in January or February, where 14 employ-
ees were present, he was called to Miletich’s office, where
the president told him he had learned about the signing up
activity. ‘‘He told us that we would—he wanted me to go
back to the guys like I did when the Steelworkers were try-
ing to organize, talk them out of it, and he would give us
a pension plan.’’
When Kelley responded by saying he would not try to talk
his fellow employees away from Local 124, Miletich went
on: ‘‘He said he was going to have—he’d call a meeting or
something with the guys, and explain it to them what he de-
cided on how much, to see what percentage, how much he’d
give us more towards a pension. And what he would come
up with was one percent.’’
Q. Did Mr. Miletich make any comments regarding
what he might do if employees brought the union in?
A. Oh yeah. Close the place down.
Q. Is that what he said?
A. Oh yeah.
Q. In this same conversation?
A. Probably said it a 100 times.
Still from Kelley’s testimony:
Q. Now, once again, regarding what he would do if
the Union came in, what did Mr. Miletich say?
A. He said he would close the place down or sell it.
Employee Switzer also testified about 1988. He started by
saying he was hired in about 1985, when the Steelworkers
campaign was going on. He said Miletich that day informed
him about the Steelworkers and told him ‘‘to stay out it.’’
Switzer continued that after the employee meeting in which
the Teamsters Local 124 cards were signed, he was called
to Miletich’s office. From his testimony:
A. [H]e let me know that he was aware that there
had been cards signed; said he didn’t know who signed
them, but he knew I was a ringleader. But that, he told
me that he knew I didn’t do it on my own, that Kelley
had something to do with it. . . . Fred told me that he
had three options. First option was to close the doors,
sellout; the second option was to sell all of his trucks
to drivers; or his third option was to give us a pension,
pension plan. And that was one percent of his money
and one percent of our money.
Switzer also quoted Miletich as follows:
Fred had made the statement that he could fire some-
body and it would be in his favor, because he would
have an unfair labor practice case; and he felt that it
was to his benefit to have an unfair labor practice case
in court. There wouldn’t be an election.
Miletich said that that meeting of employees did take
place, on about February 27, and that the reason for calling
it was because of certain problems he was having with the
truckdrivers using the wrong routes while making deliveries.
Miletich said he then asked the employees did they have
‘‘any questions.’’ With this, as he recalled, certain employees
spoke of a problem they where having with their insurance
benefits, and on the subject of retirement. Miletich then went
on, as a witness, just talking generally in understandable lan-
guage, about what was said on those two subjects. I get the
impression he was saying the Company did not make any
concessions to the employees’ demands at that meeting.
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Apart from all this Miletich said he knew nothing at that
time about any activity in favor of the Teamsters. He cat-
egorically denied ever asking anyone whether they had
signed union cards, telling them he knew who had signed,
saying he would close the place down or sell his equipment,
or speaking about the Union at all to the employees at that
time.
Given the timing, Miletich’s past activities while ignoring
the statute in his clear desire to put a stop to any kind of
protected union activity, and his vacillating and evasive way
of answering questions during the hearing, I do not credit his
conclusionary denials. Instead, I credit the employee wit-
nesses as to the events of 1988.
Accordingly, I find that by threatening to close the busi-
ness or to sell his equipment because of the union activity,
by promising a pension plan as reason for the employees to
stop signing union cards, and, again, by telling employees he
knew who the prounion activitists were, the Respondent vio-
lated Section 8(a)(1) of the Act.
The original complaint alleges that a young man named
Robert Wiltse was discharged in May 1985 as part of the Re-
spondent’s campaign to put a stop to the activities on behalf
of the Steelworkers. Wiltse, then about 16 years old, was the
stepson of Gary Ross, then a regular truckdriver with the Re-
spondent. Ross testified that when he returned from a driving
assignment on Saturday, April 26, Miletich called him to the
office and asked had he signed a union card. When Ross an-
swered yes, Miletich became angry and told him he was
‘‘fired’’ and ‘‘that I could take my son with me.’’ When
Miletich said the employees were simply trying to make
trouble for him, Ross denied it, and went on to explain that
the employees were concerned with job security, insurance,
and other benefits. With this Miletich told the driver to come
to the employee meeting he was calling for the following
Monday morning.
Ross went to that meeting on April 28 (where the Team-
sters Local 710 business agent was brought by Miletich),
and, after the meeting, his son informed him that he, Wiltse,
had been discharged.
Miletich admitted (see above) having called Ross into his
office that Saturday morning to ask whether he was involved
in the union activity, and what the problem was. He also ad-
mitted telling Ross at that moment that because he had
helped Ross in the past by hiring him, it was not right for
the man now to have joined a union movement. The one
phrase from the witness which makes this particular com-
plaint allegation clearest is, ‘‘I told him that since he didn’t
like my way of doing things, the way I’m paying him and
everything, that he could take—he could leave and take the
boy with him. That’s what I told him. That’s correct.’’ As
it developed Ross did not voluntarily leave the Company. He
was discharged a few weeks later.
Given the timing of Wiltse’s discharge, clear violations of
Section 8(a)(1) by Miletich when talking to Ross only 2 days
earlier, and Miletich’s antiunion activities running through
this entire record, I credit Ross against him as to the inci-
dent. There is therefore presented a prima facie case of a
legal discharge of the boy.
Against this, I find Miletich’s attempted explanation of the
young man’s discharge, without a word of advance warning,
unacceptable. It is a perfect example of the mixed up, con-
fused, double talk kind of testimony he gave again and again.
Q. Robert Wiltse was discharged by the company. Is
that correct?
A. He was laid off.
Q. Was he told at the time that he was going—that
he was being laid off?
A. I didn’t tell him, no. I did not.
Q. Do you know what he was told at that time?
A. Yeah.
Q. How do you know that?
A. Because Mr. Whittin—I told him to lay him off.
Q. You told Mr. Whittin to lay-off Robert Wiltse?
A. Yes.
Q. Okay. Why did you make the decision to lay-off
Robert Wiltse?
A. The decision was to made to lay-off Robert
Wiltse. Robert Wiltse is a young boy, he’s very loud,
he does not get along with other employees, and so
forth.
Q. Okay. Was this lay-off intended to be a suspen-
sion of Wiltse?
A. It was a lay-off, I said.
Q. Was it intended to be permanent?
A. Not is a sense, yes or no. I don’t know. I can’t
answer that question now.
Miletich also said at the hearing that Wiltse was not a reli-
able employee. ‘‘He would not call in take a day or two
without calling in. . . . He couldn’t get along with his—the
guy he worked with, he couldn’t get along.’’
There is no evidence that Wiltse was ever either criticized
for his performance or given any warning that he might loose
his job. The discharge came without advance notice. Wiltse
testified, and he was not contradicted, that when fired he was
not even given a reason. A 16-year old boy could very well
just leave when discharged without asking questions.
I find that the Respondent discharged Wiltse in retaliation
against the employees generally to curb their union activity,
and thereby violated Section 8(a)(3) of the Act.
A final issue raised in the original complaint is that the
Respondent criticized an employee and punished him with a
2-week suspension from work because of his prounion activ-
ity. The man’s name is Edward Connolly, one of the regular
truckdrivers. Again, considering all the facts relevant to this
particular question, I find that Miletich, president of the
Company who made the decision to suspend the man and in
fact carried it through, really continued it as part of his over-
all campaign to put a stop to the Steelworkers organizational
campaign, and thereby violated Section 8(a)(3) of the Act.
The suspension came on October 15, 1986, only 12 days
before the first hearing in this proceeding was scheduled to
take place on October 27. Connolly had been working for
this Company since 1984, and there is no indication of any
prior criticism of his work performance before this suspen-
sion.
Miletich was well aware of the man’s union activity, and
there is clear evidence of his resultant animosity against him
for that reason. Back in May, just 2 days after Connolly had
signed a card in favor of the Steelworkers, Miletich called
him to the office, asked had he signed the union card, and
why? When the man said ‘‘yes,’’ the president came back
with—as found above—a clear violation of Section 8(a)(1).
‘‘I am going to fire you and everybody else that signed those
765F. M. TRANSPORT
union cards.’’ Later, after the trucker’s suspension and when
Connolly had filed NLRB charges against the Company,
Miletich said to employee Ringer, while sitting in a cafe,
‘‘and E. G. Connolly filed more charges against me . . . the
only way I can get him off my back is to kill him.’’ Thus,
given the absence of any evidence of prior criticism of the
man’s work, the clear evidence of animosity against
Connolly, and the timing of the suspension, the record cer-
tainly shows a clear prima facia case of an unfair labor prac-
tice.
Against this, Miletich’s attempt as a witness to justify the
questioned suspension as proper punishment for deliberate
misconduct on the job, is totally unconvincing.
On Sunday evening, October 13, Miletich called Connolly
at home and asked him to leave the same evening to make
a delivery to Detroit. Connolly did that. The delivery he was
to make was scheduled to be brought to the receiver’s dock
at 7:30 p.m., Monday evening. When Connolly got to Detroit
late Sunday night, he checked into a motel. The next day he
made the delivery as scheduled. That same night he returned
to the motel and the next morning called the office to tell
the dispatcher he was free to accept a load coming back, a
normal procedure.
Miletich’s testimony is that Connolly lied about what he
was doing in Detroit, that he did not carry out orders, that
he did not make the delivery when he was supposed to, etc.
It is an inconsistent, ever changing story he gave, contrary
to clearly admitted facts. Miletich started by saying Connolly
made a mistake in going to the motel Sunday night instead
of making the delivery when he first reached Detroit. In the
next breath the witness admitted the appointed time for mak-
ing that delivery was Monday evening, and that Connolly did
make the delivery at that time. Immediately after saying this,
from the witness came the following:
Q. Did he make the delivery when he was supposed
to make it? Answer it anyway you want.
A. THE WITNESS: ‘‘No he did not.
Q. Now, did he make the delivery at the appointment
time for the delivery. Did he not?
A. Yeah. Assumed, schedule yeah, that’s what it
was. Yeah, he did.
Recalled later as a witness again, Miletich again changed
his story:
A. ‘‘Mr. Connolly was suspended for two weeks be-
cause he violated three rules in two days, and that’s
how simple it is. That’s why he got the suspension for
two weeks. I stated before I really should have fired
him because he disobeyed a direct order.
Q. What was the direct order?
A. The direct order is—was to leave for Lantz [the
customer] and deliver their load. That was a direct
order. He disobeyed it, thats like refusing a dispatch.
The truth is Connolly did exactly what his order called for.
The following testimony by Connolly is uncontradicted and
absolutely credible:
Q. And when you arrived at Lantz at 2 o’clock, what
happened?
A. Okay. I parked on the side like I always do, and
proceeded in the front door of Lantz. The security
guard came out the front door and I said, I’m—can I
get this load off tonight? He looked at my bills and
said, ‘‘You’re scheduled for 7:30 Monday night.’’ I
said, yes, sir, but I thought maybe I could get it off.
He says, ‘‘No way you’re getting this off.’’ And I said
okay.
Q. And then what do you do?
A. I proceeded back to the motel.
In conclusion I find that the 2-week layoff of Connolly in
October 1985 was a violation of Section 8(a)(3) by the Re-
spondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth above, carried
on in connection with its operations in Portage, Indiana, have
a close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes, obstruction of commerce, and the free flow of
commerce.
V. THE REMEDY
The Respondent must be ordered to cease and desist from
again committing the various unfair labor practices found. It
must also be ordered to reinstate employee Wiltse, who was
illegally discharged, and to make whole employee Connolly
for the 2 weeks of pay he lost when illegally suspended. In
the light of the extensive and repetitive unfair labor practices
committed by the Respondent, it must also be ordered to
cease and desist from in any other manner violating the stat-
ute.
CONCLUSIONS OF LAW
1. By discharging employee Wiltse and by suspending em-
ployee Connolly, the Respondent has violated and is vio-
lating Section 8(a)(3) of the Act.
2. By the foregoing conduct, and by telling employees to
form a joint committee with management to resolve working
conditions of employment, by discussing and resolving work-
ing conditions problems directly with employees while a reg-
ular union organization campaign is in progress, by ques-
tioning employees as to whether or not they had signed
union cards, by questioning employees as to the reasons they
had signed union cards, by telling employees the Company
would obtain better insurance benefits if they abandoned
their prounion activity, by telling employees the employer
knows which employees had signed union cards, and by
promising to improve conditions of employment during an
organizational campaign after questioning employees as to
their reasons for such activity, the Respondent has violated
and is violating Section 8(a)(1) of the Act.
3. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]