Gerig's Dump Trucking

National Labor Relations Board - Board Decisions

Mar 25, 1996

320 N.L.R.B. 1017 (N.L.R.B. 1996)

1017
320 NLRB No. 118
GERIG’S DUMP TRUCKING
1 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. Additionally, the Respondent
asserts that the judge’s findings are a result of bias and prejudice
and requests that the case be remanded for hearing before an ‘‘im-
partial’’ administrative law judge. After a careful examination of the
entire record, we are satisfied that this allegation is without merit.
The Respondent’s motion for rehearing is denied.
At sec. III,E,2, par. 2, and seventh sentence of the judge’s deci-
sion, the words ‘‘that it could provide such benefits’’ should read
‘‘that it could not provide such benefits.’’ This inadvertent error
does not change the results of our decision.
2 We conclude that the serious nature of the Respondent’s unlawful
conduct warrants the imposition of a broad cease-and-desist order.
Hickmott Foods, 242 NLRB 1357 (1979). We shall modify the
judge’s recommended Order accordingly.
3 Member Cohen does not pass on the issue of whether employee
turnover is a relevant factor in deciding on the propriety of a Gissel
bargaining order. Assuming arguendo that it is, Member Cohen
agrees that the turnover in this case is insufficient to warrant the de-
nial of the bargaining order.
Gerig’s Dump Trucking, Inc. and Chauffeurs,
Teamsters and Helpers Local Union No. 414,
a/w International Brotherhood of Teamsters,
AFL–CIO. Cases 25–CA–23392, 25–CA–23459,
and 25–CA–23571 (Amended)
March 25, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 30, 1995, Administrative Law Judge
Richard A. Scully issued the attached decision. The
Respondent filed exceptions with a brief in support
and an answering brief. The General Counsel filed lim-
ited cross-exceptions with a brief in support and an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
For the following reasons, we agree with the judge
that a bargaining order to remedy the Respondent’s
misconduct is warranted under NLRB v. Gissel Packing
Co., 395 U.S. 575 (1969). The parties stipulated at the
hearing that there were 21 employees in the bargaining
unit on July 25, 1994, the date the Union requested
recognition. The Respondent has not excepted to the
judge’s finding that the Union had in its possession
valid authorization cards from 15 of these employees
when it requested recognition. The Respondent now
contends, however, that a bargaining order is not war-
ranted because of employee turnover in the bargaining
unit after July 25. In this regard, the Respondent relies
on the General Counsel’s Exhibit 32 which indicates
that 8 employees who were in the bargaining unit on
July 25 are no longer employed by the Respondent and
that 12 employees hired after July 25 are now included
in the unit. We find the Respondent’s argument with-
out merit. Initially, we emphasize that turnover in the
bargaining unit is irrelevant in assessing the propriety
of a bargaining order because the ‘‘validity of a bar-
gaining order depends on an evaluation of the situation
as of the time the unfair labor practices were commit-
ted.’’ Be-Lo Stores, 318 NLRB 1, 15 (1995). Even as-
suming that turnover were a relevant consideration, we
would find the Respondent’s argument without merit.
The General Counsel’s Exhibit 32 establishes that a
majority of the employees who were in the bargaining
unit on July 25 are still in the bargaining unit and that
they now comprise more than half of the present bar-
gaining unit. The Board has found that a Gissel bar-
gaining order was warranted in cases of higher turn-
over where the seriousness of the respondents’ unfair
labor practices rendered the holding of a fair election
unlikely. See Be-Lo Stores, supra at 15 fn. 41.3
We also reject the Respondent’s argument that there
are relatively few violations and that they do not jus-
tify a Gissel bargaining order. We agree with the judge
that the seriousness of the Respondent’s unfair labor
practices fully warrants the issuance of a bargaining
order. In this regard, we emphasize not only the seri-
ous nature of Craig Yoder’s, the Respondent’s presi-
dent and co-owner, threats of business closure and job
loss, which are ‘‘hallmark’’ violations whose effect on
the unit employees cannot be underestimated, but also
the effect of the Respondent’s promise of increased
benefits on the unit employees after they renounced the
Union. The effect of these unlawful threats and prom-
ises was swift and immediate. Thus, only 2 days after
the unit employees voted to strike in support of the
Union’s request for recognition, and only 1 day after
Yoder’s unlawful threats were disseminated to the unit
employees, the employees abandoned the strike and re-
turned to work. Further, the day after the August 2
meeting at which the Respondent unlawfully promised
the employees increased benefits, 12 employees signed
a petition which stated that they resigned from the
Union. In these circumstances, the fact that the Re-
spondent had to commit only a few unfair labor prac-
tices to achieve its unlawful purpose does not mitigate
against the imposition of a bargaining order.
Finally, we agree with the judge that the Respond-
ent’s unlawful grant of benefits on August 31, 1994,
further renders the possibility of a fair election un-
likely. Unlawfully granted benefits have a particularly
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1994, unless otherwise indicated.
longlasting effect on employees and are difficult to
remedy by traditional means not only because of their
significance to the employees, but also because the
Board’s traditional remedies do not require a respond-
ent to withdraw the benefits from the employees.
Color Tech Corp., 286 NLRB 476, 477 (1987). Fur-
ther, the benefits unlawfully granted will serve as a re-
minder to the employees that the Respondent, not the
Union, is the source of such benefits and that they may
continue as long as the employees do not support the
Union. In this regard, we observe that Yoder, the indi-
vidual who committed the most serious violations, re-
mains the Respondent’s president and co-owner and is
therefore a visible reminder to the employees of what
is likely to happen if they again choose to support the
Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Gerig’s Dump Trucking, Inc., Yoder, Indiana, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(f).
‘‘(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.’’
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 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 threaten you with business closure
and loss of employment in order to discourage support
for the Union or any other labor organization.
WE WILL NOT tell you that you may not return to
work unless all the employees abandon a strike and re-
turn to work.
WE WILL NOT promise you additional benefits in
order to discourage support for the Union.
WE WILL NOT tell you that support for the Union is
futile.
WE WILL NOT grant you increased benefits in order
to discourage support for the Union.
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 recognize and, on request, bargain with the
Union as the exclusive representative of our employees
in the appropriate unit concerning rates of pay, wages,
hours, and other terms and conditions of employment
and, if an understanding is reached, embody that un-
derstanding in a signed agreement.
GERIG’S DUMP TRUCKING, INC.
Walter Steele, Esq., for the General Counsel.
James H. Hanson, Esq., of Indianapolis, Indiana, for the Re-
spondent.
Ken Henry of Fort Wayne, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On
charges filed on August 15, September 12, and November 8,
1994,1 and an amended charge filed on February 8, 1995, by
Chauffeurs, Teamsters and Helpers Local Union No. 414,
a/w International Brotherhood of Teamsters, AFL–CIO (the
Union), the Regional Director for Region 25 of the National
Labor Relations Board (the Board) issued a consolidated
complaint on February 13, 1995, alleging that Gerig’s Dump
Trucking, Inc. (the Respondent) had committed certain viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). The Respondent filed a timely an-
swer denying that it has committed any violation of the Act.
A hearing was held in Fort Wayne, Indiana, on April 24,
25, and 26, 1995, at which all parties were given a full op-
portunity to participate, to examine and cross-examine wit-
nesses, and to present other evidence and argument. Briefs
submitted on behalf of the General Counsel and the Re-
spondent have been given due consideration. On the entire
record and from my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a corporation
with an office and place of business in Yoder, Indiana, en-
gaged in the transportation of bulk commodities.
During the 12-month period preceding February 1995, the
Respondent, in the course and conduct of its business oper-
ations, sold and shipped from its Yoder, Indiana facility
goods valued in excess of $50,000 directly to Fiddler, Inc.,
an enterprise located within the State of Indiana and directly
1019GERIG’S DUMP TRUCKING
2 Given my findings on the merits, the motion concerning the alle-
gation in par. 5(c) is moot. 3 Only two drivers worked during the strike.
engaged in interstate commerce. The Respondent admits, and
I find, that at all times material it has been an employer en-
gaged in interstate commerce within the meaning Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times mate-
rial the Union was a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Motion to Dismiss
At the beginning of the hearing, the Respondent moved to
strike certain allegations in the complaint on the grounds that
they were not related to any of the allegations in the underly-
ing charges filed by the Union. That motion was denied
without prejudice and has been renewed by the Respondent
in its posthearing brief. Specifically, the motion, relying on
the United States Circuit Court of Appeal’s decision in Em-
bassy Suites Resort v. NLRB, 32 F.3d 588 (D.C. Cir. 1992),
contends that complaint paragraphs 5(b), (c), and (f) and 6(a)
are not supported by the charges and must be dismissed. I
find that the motion has no merit and it is denied. Section
10(b) of the Act does not require that the charge be specific
nor that the charge and the subsequent complaint be iden-
tical. There need only be a sufficient factual connection be-
tween the general terms of the charge and the specific allega-
tions of the complaint. The violation alleged in paragraph
5(b) of the complaint, involving employee Munson, arises
from the same incident referenced in the charge in Case 25–
CA–23571, filed on November 8. The violations alleged in
paragraph 5(f) involve conduct by Yoder that was virtually
identical to that alleged to have occurred on July 27 in the
charge in Case 25–CA–23392, filed on August 15. The
Board has the responsibility to protect public rights and it is
not precluded from dealing adequately with unfair labor
practices that are related to and grow out of those alleged in
a charge. NLRB v. Fant Milling Co., 360 U.S. 301, 308–309
(1959). The allegation in paragraph 6(a) is also directly relat-
ed to the actions of the Respondent referenced in the charge
filed on August 15. I find that the Respondent’s motion to
dismiss these complaint paragraphs should be denied.2
B. Background Facts
The Respondent began business in May 1994 when a
group of investors bought the dump truck division from an
entity known as Gerig Trucking and Leasing (GT&L). It pur-
chased the equipment and existing contracts and hired most,
if not all, of the drivers who had been working for GT&L.
The drivers were paid a percentage of the revenue generated
by their trucks. Benefits available to them included life insur-
ance, group health, and disability insurance paid for by the
employees, a 401(k) plan, and a ‘‘cafeteria plan’’ which ap-
parently provided certain tax benefits. At a meeting with the
drivers at the time of the purchase, the Respondent’s presi-
dent and part owner, Craig Yoder, informed them that they
would continue to be paid in the same manner and that the
Respondent would provide at least the same benefit package
they had been receiving.
About a month after the Respondent began operating, the
drivers began talking about seeking union representation and
eventually contacted the Union. A meeting was held at the
Union’s hall on July 15 at which several drivers signed union
authorization cards. There were meetings on July 20 and 25
at which additional cards were submitted. On the morning of
July 25, Union Business Agent Ken Henry hand-delivered a
letter to the Respondent demanding that it recognize the
Union as the drivers’ collective-bargaining representative and
that it respond to the demand by 6 p.m. that day. When the
meeting at the union hall began that evening, there had been
no response to the demand for recognition and the drivers
decided to go on strike the next morning and to set up a
picket line at the Respondent’s facilities. Sometime that
evening the Respondent transmitted a faxed letter to the
Union stating that it would not recognize the Union without
an election. It does not appear that the drivers were aware
of this response before their meeting ended. The majority of
the drivers began a strike to obtain recognition on the morn-
ing of July 26.3 On the afternoon of July 27, most of the
striking drivers decided to return to work as of July 28. The
Union maintained the picket line until August 26.
C. Alleged Violations of Section 8(a)(1)
1. The meeting near the picket line on July 26
On the afternoon of the first day of the strike, Yoder and
the Respondent’s general manager, Rick Meyers, came out to
the picket line. Union Representative Henry attempted to in-
troduce himself but Yoder said that he did not recognize the
Union and that he wanted to speak to his employees. He
asked them to select three representatives to speak with him.
The drivers selected Richard Kempf, Norman Munson, and
Eugene Hunnicutt and they, Yoder, and Meyers met up by
the shop for about a half hour. The complaint alleges that
Yoder’s remarks during this discussion violated Section
8(a)(1) of the Act.
Kempf testified that Yoder did the talking on behalf of the
Respondent and began by telling them that he did not realize
that they had such serious problems. They told Yoder that
they had asked for a meeting with Meyers to discuss prob-
lems, but it never occurred. They said that their problems in-
cluded the Respondent’s failure to provide health insurance.
Yoder said that he knew that they wanted the Union’s high-
way contract and that he could not afford to pay the highway
contract and the $4 benefit package it involved. The drivers
responded that, at that point, they did not know exactly what
they wanted except that the Respondent recognize the Union
as their bargaining representative. Yoder said that they had
until the next afternoon to decide if they were coming back
to work or staying out. If they did not return, the Respondent
would either sell the trucks and take its losses or lease them
out to somebody. He said if they did not come back to work
the trucks would be gone and they would have no jobs to
come back to. If that occurred, the drivers could go over and
apply for jobs at Bunsold Trucking, a competitor that had a
contract with the Union. The drivers returned to the picket
line and told the others what had been discussed.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 None of the other participants, including Yoder, testified that hir-
ing replacement drivers was discussed as an option.
Hunnicutt testified that Yoder told them that when the
Company was started they did not plan to be Union and that
they could either come back to work by the following
evening or the Company would be closed down. There was
a discussion about the fact that if it closed they could apply
at Bunsold and be new hires who would not be working as
much. He could not recall anything being said about benefits
at first, but after being shown an affidavit he gave the Board,
dated August 30, he recalled Yoder saying that union bene-
fits would cost $4 an hour, that it wouldn’t be feasible to do
so and that, if he had to, he might as well close up and take
his losses.
Munson testified that Yoder said that he was not going to
recognize the Union, that he knew the kind of hourly wages
that it would be seeking, plus a $4-an-hour benefit package,
and that because they had just purchased the Company and
were bound by its contracts they could not afford to pay that
kind of money. He said that if the drivers did not return to
work by 4 p.m. the next day, the trucks would be out of
there and they could seek employment wherever they went.
He did not say where the trucks were going just that they
would be gone and that, if he had to take ‘‘a bath,’’ he
would do so and go on to something else. He mentioned
Bunsold Trucking in the context of telling them they could
apply for work someplace else.
Yoder testified that he began the discussion by apologizing
for being unaware that the drivers had issues that needed to
be addressed. He told the three drivers that he could not ne-
gotiate with them or offer them anything. All he could do
was offer them an invitation to return to work. He also said
that there needed to be a deadline for their return and there-
after he would have to pursue other options because the
trucks could not sit idle. Kempf asked him what those op-
tions were and he responded that he did not know. He said
the only thing he could offer was that they return to work
under the old conditions. He said that the drivers asked if he
was going to sell the trucks to Bunsold or if he was going
to lease them out. He responded that those were options but
that no decision had been made. The drivers asked him why
he would not accept the Union’s ‘‘stockpiling agreement’’
and he said he was not familiar with it and could not discuss
it. He testified that there was no mention of a highway con-
tract, that he did not say anything about being unable to af-
ford $4 an hour in benefits, and that he did not say he would
close the Company or sell or lease the trucks. The conversa-
tion ended with him saying that he would take no action
until after there was a response from the drivers by 4 p.m.
the following day.
Analysis and conclusions
Based on their demeanor while testifying and the content
of that testimony, I credit the testimony of the three drivers
over that of Yoder. I find their generally consistent and mu-
tually corroborative testimony establishes that Yoder told
them that if the striking drivers did not agree to return to
work by the afternoon of July 27, the Respondent would sell
or lease its trucks and cease doing business. The result of
this would be that they would no longer have jobs with the
Respondent and they could go to its union-organized com-
petitor, Bunsold Trucking, and seek jobs as new hires. Nu-
merous other drivers who were at the picket line testified that
this is what the three reported to them when they returned
from the meeting with Yoder. I find that the minor dif-
ferences in their descriptions of the meeting appear to result
from their different perspectives and that they enhance rather
than detract from their credibility. All the three drivers were
still employed by the Respondent at the time of the hearing.
I find it unlikely they would falsify their testimony under
these circumstances. See Stanford Realty Associates, 306
NLRB 1061, 1064 (1992); K-Mart Corp., 268 NLRB 246,
250 (1983); and Shop-Rite Supermarket, 231 NLRB 500, 505
fn. 22 (1961). Hunnicutt, in particular, struck me as a reluc-
tant but honest witness. He admitted that he had no real
commitment to the Union but signed an authorization card
and joined the strike in order to go along with the majority
of the drivers. I believed his testimony.
On the other hand, I found Yoder’s version of what tran-
spired to be incredible and an effort to put his own spin on
the conversation and various subjects he could not deny hav-
ing been discussed. According to Yoder, at the time of this
conversation he had formulated no plan of action and did not
even know what his various options were, but he did know
that he could not negotiate or offer the drivers anything. Yet,
he went out to the picket line and asked for a private meet-
ing with three driver representatives for the sole purpose of
inviting them to come back to work under the same condi-
tions they had left. If that was the extent of his message,
there is no reason why he could not have delivered it quickly
and directly to all the drivers at the picket line. Although he
says he was simply extending an invitation to return to work,
he added a deadline of approximately 24 hours. This was
purportedly done so that he would know if he had to pursue
his other options. I find this much more indicative of an in-
tention to take specific action once the deadline passed than
as a starting point for considering what he was going to do.
According to Yoder, once he had given them the deadline,
the drivers proceeded to ask him a series of questions which
laid out his various options, including, selling the trucks, or
leasing them out and he simply acknowledged that these
were possibilities, while at the same time assuring them that
he had not decided on a specific course of action. It was the
drivers, not him, who introduced Bunsold Trucking into the
discussion by raising the possibility of a sale of the trucks
to it. He simply commented that Bunsold involved a union
‘‘scenario’’ and the drivers concluded that they would end up
at the bottom of Bunsold’s drivers list if they went to work
there. It was the drivers, not him, who raised the issues of
union wages and a $4-an-hour benefits cost, and he made no
comment about them.
Although Meyers was along to serve as a witness, his tes-
timony does little to support Yoder’s credibility. He testified
that he was walking around during the conversation and did
not hear all of it. After first saying that the conversation was
mostly questions from the drivers, primarily Kempf, and that
Yoder told them he didn’t know what his options were, he
said that Yoder told the drivers he had to get the trucks roll-
ing and if that meant hiring replacement drivers, leasing or
selling the trucks he would do so.4 Yoder testified that, at
the time of this conversation, he did not even know what his
options were. When asked on cross-examination if Yoder
told the drivers they could come back to work without the
1021GERIG’S DUMP TRUCKING
5 As is discussed below, Yoder made similar comments to
Hunnicutt on August 31.
Union or not at all, Meyers’ answer was that Yoder did not
say that ‘‘in so many words.’’ Meyers also testifed, in con-
tradiction of Yoder, that Yoder told the drivers that if the
Company was Union it would operate under a ‘‘stockpile
agreement’’ and that under such an agreement they might not
be as well off as they were. Yoder testified that, when the
subject of a ‘‘stockpile agreement’’ was raised, he was
unfamilar with it and did not discuss it.
I find that Yoder told the drivers that if they did not aban-
don the strike and return to work on the following afternoon,
the Respondent would sell or lease its trucks and cease doing
business.5 The coercive effect of these threats of business
closure and loss of jobs is obvious and such interference with
the employees’ rights to engage in activities protected by
Section 7 of the Act violated Section 8(a)(1). E.g., C.J.R.
Transfer, 298 NLRB 579, 591 (1990); Sedloff Publications,
265 NLRB 962, 969 (1982); and Pittsburgh & New England
Trucking, 238 NLRB 1706, 1707 (1978).
2. Statements by Rick Meyers
Norman Munson testified that on the evening of the first
day of the strike he telephoned Meyers and asked if he could
go back to work because he could not afford to be out of
work. Meyers responded that he had no control over that and
for Munson to return to work all the drivers had to return.
He said that they went out as a group and they had to return
as a group. Meyers testified that when Munson telephoned
him and asked if he could return to work he told him that
he would love to have him come back to work but he did
not know if he could let one guy come back and that he
would have to talk to Yoder and the attorneys, get an an-
swer, and let him know.
Former employee Dana Cuney testified that on the after-
noon of July 27, most of the drivers left the picket line and
went over to tell the Respondent that they were returning to
work. When they approached Meyers, he said that he was
glad they were coming back and the ones that were still out
there were going to be ‘‘blackballed.’’ Meyers testifed that
when the drivers left the picket line to return to work he was
sitting in his van with the door open. A group of drivers,
incuding Cuney, came up and were standing by his van. He
spoke to them as a group and told them that he was glad
to see that they were back. He told them to return at 7 a.m.
the next day to be dispatched. He denied that he said that
the ones who were still out there would be blackballed. He
said that he never used the word ‘‘blackballed’’ or anything
that was even vaguely similar during that conversation.
The complaint alleges that Meyers’ comments to Munson
during their telephone conversation on July 26 and the
‘‘blackball’’ comment testified to by Cuney violated Section
8(a)(1)
Analysis and conclusions
I credit the testimony of Munson as to what was said in
his July 26 telephone conversation with Meyers. After ob-
serving his demeanor while testifying, I found Munson to be
an impressive and believable witness and, as noted above, he
is still an employee of the Respondent and unlikely to mis-
state what occurred in this conversation. Munson’s version of
the conversation is much more in keeping with the ultimatum
that Yoder had given the drivers a few hours earlier than is
Meyers’ version. Yoder made it clear that unless the drivers
agreed to return to work by the following afternoon the busi-
ness would be closed down. Having one driver come back
to work on July 27 would have been meaningless if all or
most did not agree to return and thereby keep the Respond-
ent’s business open and the trucks running. Meyers was
aware that at least two drivers had not gone on strike and
had driven their trucks on July 26 and would be driving them
again on July 27. Yet, according to his version, he did not
know if Munson could return to work and had to consult
with Yoder and his attorneys to be sure ‘‘that we did not cre-
ate any problems.’’ However, he was unable to testify as to
any specific problem Munson’s returning to work might have
caused. Although he testified that he told Munson he would
inquire and get back to him, there is no evidence that he did
so prior to the deadline Yoder had imposed. I find that Mey-
ers’ statement that Munson could not come back to work un-
less all the employees abandoned the strike and returned was
coercive and violated Section 8(a)(1).
After observing his demeanor while testifying, I believed
Meyers’ emphatic denial that he did not tell the group of em-
ployees who returned to work on July 27 that those who had
not returned would be blackballed. Although there were sev-
eral other employees present at the time of the alleged state-
ment, no one else testified to hearing it. While he appeared
to be a credible witness and there was no reason for Cuney,
who is no longer employed by the Respondent, to fabricate
such an incident, I find it likely he overheard someone’s
speculation as to what might happen to those who did not
return and erroneously attributed it to Meyers. I find the evi-
dence fails to establish that Meyers made the statement and
shall recommend that this allegation be dismissed.
3. The July 28 letter to employees
Most of the drivers left the picket line and abandoned the
strike on the afternoon of July 27. While they were discuss-
ing their return to work with Yoder and Meyers, someone
suggested that there should be a meeting between the drivers
and management to discuss the drivers’ concerns. It was
agreed that a meeting would be held on August 2. On July
28 the drivers were given a letter from Yoder reminding
them to attend this meeting ‘‘to discuss various benefit pro-
grams being considered by the company.’’ The letter states
that the Company is ready to implement a 401(k) retirement
plan, a section 125 cafeteria plan, and $15,000 of life insur-
ance coverage. It also states that at the meeting there will be
a discussion of ‘‘additional benefits being considered for you
which include long-term disability benefits and medical in-
surance.’’ The complaint alleges that through this letter the
Respondent unlawfully promised the employees additional
benefits if they abandoned their support for the Union. The
Respondent contends that the letter, ‘‘on its face’’ does not
condition any benefits on abandoning support for the Union
and no employee could have interpreted it as doing so.
Analysis and conclusions
In determining whether an employer’s conduct is unlaw-
fully coercive, it must be looked at ‘‘in the total context of
all the circumstances.’’ Rossmore House, 269 NLRB 1176,
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 As is discussed below, I do not credit the Respondent’s claim
that it had decided to provide improved insurance benefits before the
employees sought representation by the Union.
7 The testimony of Meyers confirms this:
Q. [By Mr. Steele] So what did Mr. Yoder say about medical
and disability insurance at this August 2nd meeting?
A. Uh, basically that he couldn’t talk about it.
Q. He said he couldn’t talk about it?
A. He could not tell them anything about it.
Q. Did he say why?
A. Just because of the the legal end of the Union as far as
I understood it.
Q. What . . . how did the Union get involved in this? I mean
why . . . what did the Union have to do with him being able
to say anything about medical and disability?
A. Well, I assume that was one of the things that the Union
wanted to get . . . I mean, the drivers wanted to get from join-
ing the Union, was a medical insurance policy.
Q. And Mr. Yoder said, ‘‘I can’t talk about that because of
the Union?’’
A. Because of the Union picketing going on right now.
1177 (1984). This letter was presented to the drivers right
after they returned to work following Yoder’s telling the
drivers that the Respondent could not afford to pay wages
and benefits under a union contract and his unlawful threats
to close the business and terminate their jobs unless they
abandoned their strike and returned to work. It appears that
after using the stick to get the drivers back to work the Re-
spondent switched to the carrot to undermine their support
for the Union. In the discussion Yoder had near the picket
line with the three driver representatives on July 26, they
told him that one of their principal reasons for seeking rep-
resentation by the Union was the Respondent’s failure to pro-
vide health insurance benefits. Two days later, the drivers re-
ceived this letter in which the Respondent announced that it
would, as previously promised, finally provide certain bene-
fits they had when employed by GT & L and said that it
would be announcing ‘‘additional benefits’’ including medi-
cal insurance and long-term disability benefits. I find the
promise of improved insurance benefits within 2 days of the
date the Respondent learned that its employees were seeking
representation by the Union was clearly intended to convey
the message that union representation was unnecessary. Any
doubts the drivers may have had that these promises of im-
proved benefits were conditioned on their abandoning sup-
port for the Union were dispelled at the meeting on August
2, discussed below. These promises of improved benefits
interfered with protected rights and violated Section 8(a)(1).
Pennsy Supply, 295 NLRB 324, 325 (1989); and Highland
Foods, 255 NLRB 1118, 1120 (1981).6
4. The August 2 meeting
The meeting that had been agreed on on July 27 was held
on the evening of August 2 in a meeting room at the Orchard
Inn, a restaurant near the Respondent’s facility. The Re-
spondent was represented by Yoder and Meyers and there
was an insurance agent present. The agent made a presen-
tation explaining the benefits that were being implemented,
the 401(k) plan, the ‘‘cafeteria’’ plan and the life insurance
program. He did not say anything concerning medical insur-
ance or disability insurance.
Hunnicutt testified that he met and spoke with Yoder
downstairs before the meeting with the drivers began. Yoder
told him that he could not tell him what he wanted to be-
cause it was still too early, as ‘‘the Union was still out
there.’’ Yoder said that he had it all set up to announce com-
pany paid health insurance that night but ‘‘he was not able
to do it because of the Union.’’ Hunnicutt also testified that
at the meeting Yoder told the drivers he could not talk about
what he wanted to that night ‘‘because the Union was still
present.’’ Kempf testified that at this meeting Yoder said that
he knew that the drivers had problems but that they had to
take care of one problem before he could do anything. Mun-
son testified that Yoder said that he could not do anything
for them at that time and that they had to get rid of this other
problem before he could do anything.
Yoder testified that he began the meeting by introducing
the insurance agent and telling the drivers that while the
agent was to present five different items as indicated in the
memo they had received, ‘‘unfortunately, because of the cur-
rent situation, we will not be able to address two of those
items, which are medical insurance and the disability.’’ He
also told them the agent would not respond to any questions
concerning those two subjects ‘‘because of the current situa-
tion.’’ Yoder denied that he had made any reference to or
used the word ‘‘problem’’ during the meeting or that he had
said that he could not talk about what he wanted to because
of the Union or because the Union was still present.
Analysis and conclusions
I credit the testimony of Hunnicutt that Yoder told him be-
fore the meeting started that he was going to announce that
the Company would provide the drivers with medical and
disability insurance but that he could not do so because the
Union was still there. I also credit the consistent testimony
of Munson and Kempf that during the meeting Yoder told
the drivers that there would be no announcement or discus-
sion of these items and that they had to do something about
the ‘‘problem’’ before there would be. I find that these state-
ments constituted coercive and unlawful attempts to induce
the employees to abandon their support for the Union in re-
turn for increased benefits.
The Respondent contends that because Yoder did not spe-
cifically say that he was promising to provide these benefits
if the drivers withdrew their support for the Union, there can
be no violation of the Act. I do not agree. A lawful purpose
is not established by the fact that the employer who promises
increased benefits did not expressly relate those promises to
the organizational campaign. See Honolulu Sporting Goods
Co., 239 NLRB 1277, 1280 (1979), citing the Supreme
Court’s decision in NLRB v. Exchange Parts Co., 375 U.S.
405, 410 (1964). Moreover, the Respondent’s action must be
looked at in the context of the surrounding circumstances. In
its July 28 letter to the drivers, the Respondent informed
them that one of the purposes of the August 2 meeting was
to discuss the ‘‘additional benefits’’ of medical and disability
insurance. At the meeting, Yoder informed them that these
subjects could not be discussed because the Union was still
present. Even under Yoder’s version, that he said only that
this was ‘‘because of the current situation,’’ it was an obvi-
ous reference to the Union and indicated that these additional
benefits would not be forthcoming so long as it was in the
picture.7
1023GERIG’S DUMP TRUCKING
Q. Okay. ‘‘I can’t talk about either the, uh, long-term disabil-
ity or the medical insurance because of the Union?’’
A. Yeah, I . . . as I remember, yeah, that is right.
8 Although Meyers did unlawfully tell Munson, during the strike,
that he could not come back to work unless all the drivers returned,
there is no evidence that any other driver was told the same thing.
It became a moot point once the drivers decided to return to work.
In its brief, the Respondent also contends that at the meet-
ing Yoder ‘‘informed the drivers that there were certain
questions about benefits that he could not respond to and
that Gerig was not in a position to work out any insurance
program until a resolution was reached, favorably or unfa-
vorably, with regard to the union’s organizational efforts’’
and that this simply summarized the Respondent’s rights and
obligations under the law regarding providing benefits during
an organizing campaign. (Emphasis added.) The problem
with this contention is that there is no evidence that Yoder
ever said the italicized part of the sentence the brief at-
tributes to him. He didn’t say it when he introduced the in-
surance agent at the start of the meeting and he didn’t say
it before he left the premises even though he was admittedly
aware by that time that the drivers were already talking about
what they had to do in order to get rid of the Union. There
can be little doubt but that was exactly what the Respondent
had hoped to accomplish. I find Yoder’s telling the employ-
ees at the August 2 meeting that the additional medical and
disability insurance benefits mentioned in its July 28 letter
would not be implemented because the Union was still
present did not serve to rebut the promise of increased bene-
fits contained in that letter. Yoder’s statement at the meeting,
concerning these benefits, was an additional implied promise
of increased benefits if they abandoned their support for the
Union and violated Section 8(a)(1). Western Health Clinics,
305 NLRB 400, 406–407 (1991).
5. The Autumn Ridge incident
Hunnicutt testified that on the afternoon of August 31,
prior to an employees’ meeting at which the Respondent an-
nounced it would provide paid insurance benefits, he encoun-
tered Yoder at the Autumn Ridge jobsite. Yoder told him
that the drivers would be happy because the Company was
going to carry insurance for them. He also told Hunnicutt
that the Company ‘‘would never be union’’ and that they
were a lot better off that the Union was out of there and that
he hoped they realized it. Yoder also said that if they went
union he ‘‘would just close it up and put it under Bunsold
Trucking and lease it to them or whatever.’’
Yoder testified that when he met Hunnicutt at the Autumn
Ridge jobsite he was there in his capacity as an officer of
Colonial Development and not as an officer of the Respond-
ent. He admitted discussing with Hunnicutt the fact that there
was a meeting for the Respondent scheduled for that evening
at which insurance benefits would be announced, but said
that the subject of the Union never came up. He denied say-
ing that the Company would never be union, that they were
better off without the Union, or that he would close down
the Company if it went union.
Analysis and conclusions
This is strictly a matter of credibility. As discussed above,
I found Hunnicutt, a current employee who was clearly re-
luctant and uncomfortable testifying adversely to the Re-
spondent’s interests about this and other incidents, to be an
honest and convincing witness. There was absolutely no rea-
son for him to fabricate such an incident after he had at-
tempted to resign from the Union and the Respondent had
provided the drivers with the medical insurance benefits
Hunnicutt was so concerned about. I did not believe Yoder’s
testimony that he did not discuss the Union with Hunnicutt.
Although the Respondent apparently contends that Yoder’s
remarks are not attributable to it because he was not rep-
resenting it at this jobsite, the contention has no merit. Yoder
was clearly talking to Hunnicutt as a representative of the
Respondent when he told him about the insurance benefits
that were to be announced at the meeting that evening and
when he directed Hunnicutt to be at the meeting and author-
ized him to quit working at 5 p.m. in order to attend the
meeting although the contractor he was hauling for wanted
him to work past 6 p.m. Like his statements to the driver
representatives on July 26, Yoder’s remarks here threatened
business closure and made an implied promise of unspecified
benefits if the employees rejected the Union, in violation of
Section 8(a)(1). His statement to Hunnicutt that the Respond-
ent would never be Union, implied that support for the
Union was futile, and also violated Section 8(a)(1). Rood In-
dustries, 278 NLRB 160, 164 (1986); and El Rancho Market,
235 NLRB 468, 471–472 (1978).
D. Alleged Violations of Section 8(a)(3) and (1)
1. Conditioning employment on employees’ abandoning
support for the Union
The complaint alleges that, since July 26, the Respondent
has violated Section 8(a)(3) and (1) of the Act by condi-
tioning further employment of its employees on abandoning
their support for the Union. I find that the evidence fails to
establish such a violation. It is clear that the Respondent did
not want the Union to represent its employees and that it
took several unlawful actions to undermine their support for
the Union, including threats of business closure, implied
promises of benefits if they did not opt for such representa-
tion and the granting of additional benefits. However, there
is no evidence that it actually conditioned any employee’s re-
turn to work or continued employment on his abandoning
support for or membership in the Union.8 When confronted
by the Union’s demand for recognition based on authoriza-
tion cards signed by a purported majority of its employees,
the Respondent had the right to refuse and to insist on a rep-
resentation election. Summer & Co. v. NLRB, 419 U.S. 301
(1974). That is what it indicated it would do in its July 25
letter in response to the Union’s recognition demand. I shall
recommend that this allegation be dismissed.
2. Constructive discharges of employees Cramer
and Underwood
Lewis Cramer and Leonard Underwood were employed by
the Respondent as drivers when the Union’s organizing cam-
paign began. They attended union meetings, signed author-
ization cards, and participated in the strike. They had agreed
with one another after the first day of picketing that they
would not go back to work if the Respondent did not recog-
nize the Union. When most of the drivers left the picket line
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 285 NLRB 81, 82 (1987).
10 During the period between the purchase of the business by the
Respondent and September 1, the drivers who had opted for cov-
erage under GT&L’s medical insurance program had been purchas-
ing such insurance under a program known as COBRA.
11 For example, he testified that he did not know whether the dis-
ability insurance program GT&L provided was paid for by the Em-
ployer or the employees.
12 Although there was evidence that Yoder had told Hunnicutt at
some time that they would have paid insurance, Yoder testified that
he told him that he ‘‘was not going to go public with it’’ and would
deny ever saying it. I find this is insufficient to establish that the
Respondent had a policy whereby it was committed to providing
these benefits which predated the advent of the Union.
and agreed to return to work on the afternoon of July 27,
Underwood who was present did not join them. That evening
he telephoned Cramer and told him about the other drivers
abandoning the strike and agreeing to return to work. Neither
has returned to work for the Respondent. The complaint al-
leges that Cramer and Underwood were constructively dis-
charged in violation of Section 8(a)(3).
Analysis and conclusions
This is not a case in which the employer unlawfully unilat-
erally abrogated an existing collective-bargaining relationship
with its employees’ chosen representative. Consequently, Su-
perior Sprinkler, 227 NLRB 204 (1976), and similar cases
cited by the General Counsel are inapposite. Here, the em-
ployer declined to recognize the Union without an election.
I have found that there is no evidence that the Respondent
actually conditioned the strikers’ ability to return or continue
to work on their abandoning support for or membership in
the Union. Accordingly, I also find that they were not faced
with the choice of quitting or continuing their employment
on condition that they relinquish rights guaranteed by Section
7 of the Act when the Respondent refused to recognize the
Union. Given the unlawful threats made by Yoder on July
26, Cramer and Underwood may have believed they would
face that choice. But as is stated in White-Evans Service
Co.:9 ‘‘Although resigning in the face of such a choice is
one thing, ‘quitting in anticipation that such may take place
later on is an entirely different matter.’ Marquis Elevator
Co., 217 NLRB 461 (1975).’’ I find that Cramer and Under-
wood were not constructively discharged and that this allega-
tion should be dismissed.
3. Granting increased benefits
At a meeting for all employees held at the shop on the
evening of August 31, the Respondent announced that it
would provide company paid medical and long-term disabil-
ity insurance for its employees, effective September 1. When
they were employed by GT&L, the drivers had the option of
purchasing medical and disability insurance without any em-
ployer contribution to the cost. Following its purchase of the
business from GT&L, in a letter to employees, dated June 9,
the Respondent had informed them that it would provide
them with ‘‘the same group medical insurance coverage’’
they had with GT&L.10 The complaint alleges that the Re-
spondent violated Section 8(a)(3) and (1) by implementing
improved insurance benefits in order to discourage the em-
ployees’ support for the Union. The Respondent contends
that it had been considering providing such benefits before
it learned of the employees’ union activity and had nothing
to do with the Union.
Analysis and conclusions
Granting employees increased benefits in order to dissuade
them from choosing a labor organization as their collective-
bargaining representative is discriminatory and violates the
Act. E.g., Ideal Elevator Corp., 295 NLRB 347, 351 (1989);
Dentech Corp., 294 NLRB 924, 965 (1989); and Clements
Wire & Mfg. Co., 257 NLRB 206, 208 (1981). If, however,
the employer can establish that the grant of benefits was gov-
erned by factors unrelated to the advent of union activity,
such as being part of a preexisting company policy from
which it has not deviated, it will not be found to have acted
unlawfully. American Sunroof Corp., 248 NLRB 748 (1980);
Honolulu Sporting Goods Co., supra at 1280. I find that the
Respondent has not established that it had already decided to
provide its employees with company paid medical and dis-
ability insurance benefits before it learned that they were
seeking representation by the Union or that its decision was
not intended to undermine their support for the Union.
The Respondent relies primarily on the self-serving testi-
mony of Yoder in trying to establish that it had made a deci-
sion to provide these benefits before the Union appeared on
the scene. I did not believe his testimony about several other
issues and I found his testimony about how, when, and why
this decision was made to be incredible. To begin with, he
admitted that he was not primarily responsible or directly in-
volved in arranging for these insurance programs and he
seemed to know little about them.11 The programs were ar-
ranged by an insurance agent, Pat Sullivan, and Rex Harris,
a co-owner of the Company. Harris was not called as a wit-
ness to corroborate Yoder’s testimony or to expand on his
admittedly incomplete knowledge. There was no evidence
that Harris was unavailable or unfavorably disposed to the
Respondent. This warrants the inference, which I draw, that
his testimony would not have supported the Respondent’s
position on this issue. International Automated Machines,
285 NLRB 1122, 1123 (1987).
Yoder testified that when he first met with the drivers after
the purchase of the business, he told them that the Respond-
ent would provide at least the same benefit package as they
had under GT&L. This was confirmed in the June 9 letter
which informed the employees that the Respondent was
‘‘currently in the process of providing to you the same group
medical insurance coverage under which you have previously
been covered with Gerig’s Trucking & Leasing, Inc.’’ and
asked them to fill out an enclosed enrollment form indicating
whether they wished to participate in the program. There is
no dispute but that the insurance available to the employees
of GT&L was not paid for by the Employer and Yoder ad-
mits that he had never told the employees that the Respond-
ent would provide company paid medical and disability in-
surance benefits prior to the demand for recognition by the
Union.12
Yoder claimed that the Respondent was considering pro-
viding these benefits but a final decision could not be made
until the insurance agent researched the medical history of
the employees and determined what the cost would be. He
said that this was delayed due to the failure of its first insur-
ance agent to get the programs together and that Sullivan, its
1025GERIG’S DUMP TRUCKING
13 There was evidence that some employees, who no longer had
medical insurance because the Respondent had not provided any de-
spite its statement that it would do so, expressed some concerns over
their coverage under the COBRA program.
14 They are Richard Kempf, Eugene Hunnicutt, Dana Cuney, Nor-
man Munson, Leonard Underwood, Lewis Cramer, Cecil Claybaugh,
and Kenneth Behny.
new agent, provided the cost and other information it needed
to make that decision on the Monday before the strike began.
I did not believe him. First, until the Union came into the
picture, there was no incentive or any apparent reason for the
Respondent to provide improved insurance benefits after an-
nouncing that it would provide the same benefits. All the
drivers who had worked for GT&L came to work for the Re-
spondent after Yoder had told them they would receive the
same benefits that they had. Within a few weeks of taking
over the business, the Respondent had actually increased the
drivers’ benefits by giving them paid holidays and extra pay
for working on Saturdays. There was no evidence that the
employees demanded or even asked for additional or im-
proved benefits.13 On the contrary, on July 26, Yoder ex-
pressed surprise when he learned that the drivers were so
upset that they had gone to the Union.
There is no documentary evidence to support the claim
that insurance agent Sullivan was asked to or provided the
Respondent with information concerning the company paid
insurance programs it implemented, as of September 1, be-
fore its employees sought representation by the Union. The
only document in the record concerning either of these pro-
grams is one summarizing the medical insurance benefits
which was handed out to employees by Sullivan on August
31. It appears to have been first sent to the Respondent by
a fax transmission on August 30. Although Yoder claimed
one purpose of this document was to inform the partners of
what they were providing, it contains no information con-
cerning the cost of the program to the Respondent. When
asked on cross-examination what correspondence there had
been between the Respondent and the insurance agent con-
cerning these programs, Yoder’s answer was that he did not
know because Harris handled it. When asked about the infor-
mation on which the Respondent had based it decision to pay
for the insurance, he again said he did not know what it was
because Harris handled it. When asked if there were docu-
ments which would reflect that information, he said that he
assumed there were. Finally, when asked when such docu-
ments became available to the Respondent, he said that he
did not know, but Harris might. As indicated, I did not find
Yoder to be a credible witness and I find the Respondent’s
failure to call Harris as a witness or to provide any docu-
mentation as to when it asked for and/or received the infor-
mation it claims its decision to provide these benefits was
based supports an inference that it was not until after the em-
ployees sought representation by the Union. Accordingly, I
find that the evidence fails to establish that the Respondent
had a preexisting policy pursuant to which these insurance
benefits were provided. I conclude that they were imple-
mented because the employees sought such representation
and in order to dissuade them from doing so, in violation of
Section 8(a)(3) and (1).
E. Alleged 8(a)(5) Violation
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) by rejecting the Union’s demand for recogni-
tion and thereafter committing unfair labor practices so seri-
ous and substantial that the possibility of erasing their effects
and assuring the conduct of a fair representation election by
use of traditional remedies is slight and that the entry of a
remedial order requiring it to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
its drivers is warranted. There is no dispute but that on July
25 the Union made a demand for recognition which the Re-
spondent rejected.
1. The Union’s majority status
The evidence establishes that there were 21 drivers em-
ployed by the Respondent on the date that the Union made
its demand for recognition. The Respondent contends that the
evidence does not establish that the Union had valid author-
ization cards from a majority of the drivers on that date. It
argues that certain of the cards should not be counted in de-
termining whether the Union had majority status because
they were not properly authenticated at the hearing. There is
no dispute as to the cards of eight drivers who appeared as
witnesses and authenticated their cards.14
The Respondent objects to counting several cards that
were introduced through the testimony of Union Representa-
tive Ken Henry on the grounds that they have not been prop-
erly authenticated. I find that each of these cards has been
properly authenticated and should be counted. The Board
does not require that the signer of an authorization card ap-
pear as a witness to authenticate it or that his absence be ac-
counted for. It has long held that ‘‘a card may be authenti-
cated by a witness who testifies that he observed its execu-
tion,’’ and it ‘‘will also accept as authentic any authorization
cards which were returned by the signatory to the person so-
liciting them even though the solicitor did not witness the ac-
tual act of signing.’’ McEwen Mfg. Co., 172 NLRB 990, 992
(1968). Accord: Stride Rite Corp., 228 NLRB 224, 234–235
(1977).
Henry testified concerning the organizational meetings for
the Respondent’s employees held at the union hall on July
15, 20, and 25 and he identified the attendance sheets for
those meetings. He testifed that at the meetings on July 15
and 20 he received a number of authorization cards from em-
ployees in attendance and stamped the date of receipt on the
back of each card. He testified that the cards were on the
table during the meeting but that he did not actually witness
them being filled out or signed. Henry identified the cards
of Kevin Krumma, John Isamoyer, George Marlow, Roy
Guzman, and Lynn Cocks as having been handed to him at
one or the other of the meetings by those employees. The at-
tendance sheet for the July 15 meetings shows that Isamoyer,
Marlow, and Guzman were at the meeting and their cards
bear stamps showing they were received by Henry on that
date. The attendance sheet for the July 20 meeting shows
that Cocks attended the meeting and his card is stamped as
having been received on that date. Although Krumma did not
sign the attendance sheet for the July 20 meeting, the date
his card was stamped as received, I do not find this casts any
doubt on Henry’s credible testimony that he received the
card from Krumma, as signing in at the meetings was not
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 It is noted that Krumma’s name is printed on the attendance
sheet for the July 25 meeting and the printing is similar to that on
his authorization card.
16 The transcript reports part of Henry’s testimony concerning this
card, as being:
Q. [By Mr. Steele] And that’s the card of Mr. Lynn Dagger
[sic]?
A. Yes, sir.
Q. And it’s dated 7/18 and you received it on or about . . . ?
A. On the 20th, it came in with the other cards.
Q. Upon the driver?
A. On the other driver.
I find that the italicized portion of this testimony makes no sense
and was apparently incorrectly transcribed.
17 The Union sought recognition as the representative of a unit
consisting of all truckdrivers employed by the employer but exclud-
ing all office clerical employees, guards and supervisors, as defined
in the Act. There does not appear to be any dispute but that this
constitutes the appropriate bargaining unit.
18 Although at the hearing the Respondent’s counsel stipulated that
there were 21 drivers in the unit, in his brief he contends there were
22. The difference may result from the Respondent’s view as to the
status of Harrel Lanier Jr., a mechanic who apparently sometimes
drives a truck. Regardless of whether Lanier is included in the unit,
the Union had more than a majority on July 25.
mandatory.15 I find that all of these cards should be counted
in determining the Union’s majority status. Certain of
Henry’s testimony concerning the card of Lynn Dager, as re-
flected in the hearing transcript, is unclear.16 After careful
consideration, however, I find that he did not state that he
was given Dager’s card by another driver, as the Respondent
contends. His card is stamped as having been received by the
Union on July 20. The attendance sheet for the meeting
shows that Dager was present. Henry indicated that he did
not see Dager sign his card but he did not say that Dager
was not present or that someone else gave him Dager’s card.
I find that this card should be counted.
The card of Donald Harris was received by the Union at
the July 15 meeting but it is unsigned. Harris testified that
he attended the meeting, filled out the card, and returned it
to Henry, but he failed to sign it due to ‘‘just my careless-
ness.’’ He said that he did not realize that he had neglected
to sign the card until it was shown to him at the hearing.
The Respondent contends that because the card is unsigned
it does not constitute a designation of the Union, but dem-
onstrates his lack of interest in such representation and that
his subsequent testimony concerning his intent cannot be
considered. I do not agree. If Harris was not interested in
representation by the Union, he had no reason to fill out the
card and even less to return it to the solicitor. There is an
obvious ambiguity about Harris’ card which can be resolved
by his testimony. I. Tatel & Son, 119 NLRB 910, 911 fn.
3 (1957). Nothing in that testimony was inconsistent with or
sought to repudiate his actions on July 15. The evidence
shows that Harris attended all three meetings at the union
hall and that he joined the strike at the outset and served on
the picket line both days. I find that by filling out the card
and delivering it to Henry on July 15, Harris made a valid
designation and that his card should be counted.
Henry identified the undated card of Norman Meredith as
having been received at the meeting on July 20, the date
stamped on the card. However, Henry did not see Meredith
sign the card and was not sure if he was present at the meet-
ing. His name is not on the attendance sheet. Because
Henry’s testimony does not establish that Meredith signed
the card or that he received the card from Meredith, I find
that this card does not meet the standards for authentication
discussed above and should not be counted. The same is true
with respect to the card of Larry McHenry which Henry did
not receive directly from the signatory but from another un-
identified driver who brought it to him at the July 20 meet-
ing, which McHenry did not attend. That card should not be
counted. Henry testified that Richard McHenry came to the
picket line on July 26, represented himself as being an em-
ployee of the Company, offered to participate in the strike,
and filled out an authorization card. There is no evidence to
establish that Richard McHenry was ever an employee of the
Respondent. He is not on the list in the record that the par-
ties have stipulated includes the names of all drivers em-
ployed by the Respondent on July 25, the date of the
Union’s demand for recognition. Consequently, I find that
his card should not be counted. See Dadco Fashions, 243
NLRB 1193 (1979). The card of Kirk Sipe was not signed
or received by the Union until July 26 and cannot be counted
in determining whether the Union represented a majority of
the employees on July 25.
I find that the evidence establishes that there were 21 driv-
ers employed by the Respondent on July 25, the date the
Union made its demand for recognition.17 I also find that as
of that date the Union had been designated as the bargaining
representative of 15 of the unit employees, which was more
than a majority.18
2. The propriety of a bargaining order remedy
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Supreme Court held that in exceptional cases involving out-
rageous and pervasive unfair labor practices, a bargaining
order is justified because traditional remedies cannot elimi-
nate the coercive effects of the employer’s misconduct and
a fair election cannot be held. The Respondent’s conduct in
this case does not fall into the exceptional case category. I
find, however, that it does fall into the second category dis-
cussed in Gissel, involving, ‘‘less extraordinary cases marked
by less pervasive practices which nonetheless still have the
tendency to undermine majority strength and impede the
election process.’’ Id. at 614. In such cases a bargaining
order should issue when the possibility of erasing the effects
of past misconduct and ensuring a fair election through the
use of traditional remedies is slight and employee sentiment
once expressed through authorization cards would, on bal-
ance, be better protected through a bargaining order.
I have found that the Respondent has committed several
violations of Section 8(a)(1) and (3) of the Act, the most sig-
nificant of which involved threats of business closure and
loss of employment, promising additional benefits, and the
granting of substantial benefits in order to undermine the em-
ployees’ support for the Union. Within a day of learning that
the drivers were seeking union representation, the Respond-
ent committed what the Board considers to be among the
most pernicious of ‘‘hallmark violations’’ of the Act when
Yoder threatened that if they did not abandon the strike and
return to work within 24 hours the business would close and
they would be without jobs. As it stated in A.P.R.A. Fuel Oil,
309 NLRB 480, 481 (1992), such threats are among the most
1027GERIG’S DUMP TRUCKING
19 Medical Center of Ocean County, 315 NLRB 1150 (1994); and
Teksid Aluminum Foundry, 311 NLRB 711 (1993).
20 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.
flagrant forms of interference and ‘‘are more likely to de-
stroy election conditions for a longer period of time than are
other unfair labor practices because they tend to reinforce the
employees’ fear that they will lose their employment if union
activity persists.’’ The effects of the threats made here in dis-
sipating support for the Union could hardly have been more
dramatic. On Monday, July 25, all but 2 of the 21 drivers
agreed to strike for recognition and appeared on the picket
line on Tuesday. By the time of the Respondent’s deadline
for returning to work on Wednesday afternoon, all but two
of the striking drivers had left the picket line and had agreed
to return to work. The Respondent immediately followed up
with a promise of additional insurance benefits but then, at
the August 2 meeting where the benefits were to be an-
nounced, it informed the drivers that it could provide such
benefits until the union problem was solved. Not surpris-
ingly, this resulted in 12 drivers signing a purported resigna-
tion from the Union on August 3. On August 31, the Re-
spondent did implement the additional insurance benefits it
had promised but then withheld. As counsel for the General
Counsel points out, such a grant of benefits is likely to have
a long-lasting effect not only because of its importance to the
employees but because the Board’s traditional remedies do
not require the withdrawal of such benefits. Color Tech
Corp., 286 NLRB 476, 477 (1987). Consequently, if an elec-
tion were to be held while the employees were the bene-
ficiaries of the employer-paid insurance programs, it would
‘‘serve as a constant reminder to employees of the Respond-
ent’s use of economic weapons to defeat the Union.’’ Red
Barn System, 224 NLRB 1586 (1976). Also significant in
considering whether a bargaining order remedy is appropriate
is whether similar violations are likely to occur. The most
significant violations were committed by Yoder who remains
the president and co-owner of the Company. In its brief, the
Respondent contends that a bargaining order should not be
entered here because there was none in certain other Board
cases it has cited which allegedly involved unfair labor prac-
tices of greater number and severity.19 A reading of those
decisions shows no evidence that a bargaining order was re-
quested, let alone rejected, and no evidence that the unions
involved ever had a card majority.
Given the nature of the Respondent’s unlawful conduct
and its impact on all employees in the bargaining unit, I find
that it is unlikely that its effects would be erased or that a
fair election could be ensured by the use of traditional rem-
edies. I conclude that a bargaining order is necessary to pro-
tect the free expression of employee sentiment as evidenced
by the authorization cards and shall recommend the issuance
of an order requiring the Respondent to recognize and bar-
gain with the Union.
CONCLUSIONS OF LAW
1. The Respondent, Gerig’s Dump Trucking, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
threatening employees with business closure and loss of em-
ployment if they did not return to work, telling an employee
he could not return to work unless all the employees aban-
doned the strike and returned to work, promising employees
additional benefits to discourage their support for the Union,
and informing an employee that selecting the Union as a bar-
gaining representative would be futile.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by granting employees increased benefits in order to dis-
courage support for the Union.
5. All full-time truckdrivers employed by the Respondent
at its Yoder, Indiana, facility; but excluding all mechanics,
office clerical employees, professional employees, guards and
supervisors as defined in the Act constitute a unit appropriate
for the purposes of collective-bargaining within the meaning
of Section 9(b) of the Act.
6. At all times since July 25, 1994, the Union has been
the exclusive representative of all employees in the above-
described unit for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, within the mean-
ing of Section 9(a) of the Act.
7. The Respondent violated Section 8(a)(5) and (1) of the
Act by refusing on and after July 25, 1994, to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of the employees in the above-described unit.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
9. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found here.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent has engaged in substan-
tial and pervasive unfair labor practices which were cal-
culated to destroy the Union’s majority status, that traditional
remedies for such unfair labor practices are unlikely to elimi-
nate their lingering and coercive effects, and that the chances
of holding a fair election are slight, I shall recommend that
the Respondent be required to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
its employees in the appropriate unit.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Gerig’s Dump Trucking, Inc., Yoder, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Nothing in this Order shall be construed as requiring the Re-
spondent to withdraw the employer-paid insurance benefits granted
to employees on August 31, 1994, without a request from the Union.
See Elias Mallouk Realty Corp., 265 NLRB 1225 fn. 3 (1982); and
Taft Broadcasting Co., 264 NLRB 185 fn. 6 (1982).
22 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.’’
(a) Threatening employees with business closure or loss of
employment because of their support for the Union or any
other labor organization.
(b) Telling employees they cannot return to work unless
all the employees abandon a strike and return to work.
(c) Promising employees benefits in order to discourage
support for the Union.
(d) Telling employees that their support for the Union is
futile.
(e) Granting employees increased benefits in order to dis-
courage support for the Union.21
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, recognize and bargain with the Union as
the exclusive representative of the employees in the appro-
priate unit concerning rates of pay, wages, hours, and other
terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
(b) Post at its facility in Yoder, Indiana, copies of the at-
tached notice marked ‘‘Appendix.’’22 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the consolidated complaint is
dismissed insofar as it alleges violations of the Act not spe-
cifically found.