Hennessy Service Corp.

National Labor Relations Board - Board Decisions

Jun 19, 1973

204 N.L.R.B. 266 (N.L.R.B. 1973)

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hennessy Service Corporation and Chauffeurs, Ware-
housemen and Helpers , Local No. 182, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 3-CA-5000
June 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 13, 1973, Administrative Law Judge
Thomas D. Johnston issued the attached Decison in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Hennessy Service Corpora-
tion, Ilion, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
Corporation (herein referred to as the Respondent) violated
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended (herein referred to as the Act), by interro-
gating employees concerning their union activities; threat-
ening employees with plant closure, discharge, loss of
benefits, and other reprisals for engaging in union activities;
creating impressions of surveillance of their union activities;
ordering and soliciting employees to refrain from engaging
in union activities by offering and promising them improved
working conditions; soliciting employees including promis-
ing a remuneration for them for not participating in the
election; soliciting employees to interrogate other employ-
ees concerning the Union and to inform them Respondent
would try to resolve their grievances; soliciting and promis-
ing to resolve employees' grievances; promising and grant-
ing employees overtime and other benefits or improvements
to refrain from engaging in union activities; informing em-
ployees Respondent was angry about their union activities,
that they should have informed the Respondent which had
given them their jobs, and that a supervisor would lose his
job if the Union got in; discriminating against employees
Lawrence Foley and Edward Krisch because of their union
or protected activities by changing their working conditions
concerning the use of vehicles in their work; and by refusing
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of certain employees.
Respondent in its answer filed on October 10 and amend-
ed on October 12 denied having violated Section 8(a)(l), (3),
or (5) of the Act.
The issues are whether Respondent violated Section
8(a)(1), (3), or (5) of the Act by engaging in unlawful interro-
gations, threats, solicitations, and promises; by creating im-
pressions of surveillance of employees' union activities; by
granting economic benefits; by making unlawful state-
ments ; by discriminatorily changing the working conditions
of employees Lawrence Foley and Edward Krisch; and by
unlawfully refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representative
of certain of its employees.
At the hearing the parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally on the record, and to submit
briefs.
Upon the entire record in this case and from my observa-
tion of the witnesses, and after due consideration of the
briefs filed by the General Counsel and Respondent, I here-
by make the following:
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Utica, New York, on December 5 and 6,
1972,I pursuant to a second amended charge 2 filed on Octo-
ber 2 by the Chauffeurs, Warehousemen and Helpers, Local
No. 182, affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of America
(herein referred to as the Union), and an amended com-
plaint issued on October 4.
The amended complaint alleged that Hennessy Service
1 All the dates referred to are in 1972 unless otherwise stated
2 The original charge was filed on August 10, and an amended charge was
filed on August 22.
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
Respondent, a New York corporation, with its principal
office and place of business located at Ilion, New York, is
engaged in the business of the retail sale of cigarettes, pre-
pared food, and related products from coin-operated vend-
ing machines maintained and serviced by it on the premises
of various business entities located in the Utica, New York,
area. During the 12-month period preceding October 4,
Respondent's gross revenues derived from its operations
exceeded $500,000, during which period it purchased, trans-
204 NLRB No. 52
HENNESSY SERVICE CORP. 267
ferred, and delivered directly to its Ilion facility goods val-
ued in excess of $50,000 from states located outside the
State of New York.
Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION
Respondent orally amended its answer to admit, and I
find, that Chauffeurs, Warehousemen and Helpers, Local
No. 182, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
of Respondent's Employees
A meeting was held the first part of July at the home of
Respondent's executive vice president, Robert Bennison 3
Those who attended besides Bennison were General Man-
ager John Gorea, Personnel Manager and Route Service
Supervisor Sidney Renshaw,4 and Foreman George El-
thorp. Prior monthly meetings had been held by these same
individuals to discuss company business including employ-
ee gripes. Elthorp, while first claiming Gorea and Bennison
had asked him to meet because they wanted to talk to him,
later changed his testimony by stating Gorea had suggested
having the meeting to find out what was wrong with the
employees. Elthorp, although unable to identify who did the
talking, claimed someone at the meeting wanted to know
what the employees' complaints were which would lead
them to ask for a application to the Union. When he re-
sponded because they weren't getting paid for overtime on
Saturday morning and because of a reduction in the bonus,
he was told that if any of the employees had a legitimate
complaint management would see if they could rectify it,
but, if not, the employees would have to live with it. Accord-
ing to Elthorp, he was asked to contact the employees, find
out what their complaints were, and report back. Thereafter
he talked to most of the employees concerning their com-
plaints and about a week later, when Gorea and Renshaw
asked him what he had found out, he informed them the
complaints concerned the bonus and the employees thought
they should be getting paid time-and-a-half pay for Satur-
days or overtime. Elthorp stated Gorea said if the employ-
ees worked overtime all they had to do was write it on a slip,
give it to Elthorp, and they would be paid, but that he had
no control over the bonus. Elthorp stated he then informed
the employees about the overtime procedure. Under cross-
examination, however, Elthorp admitted that it was he who
suggested having a meeting and that at the outset of the
meeting Bennison had told them he did not want to discuss
3 Executive Vice President Bennison also served as the general counsel and
as a member of the board of directors of the Respondent.
Executive Vice President Bennison , General Manager Gorea , and Per-
sonnel Manager Sidney Renshaw were all admitted to be agents and supervi-
sors of Repondent within the meaning of the Act.
anything about the Union.
General Manager Gorea testified that the meeting was
arranged after Elthorp had come to him about complaints
of the employees which he wanted to discuss. Both Gorea
and Benison testified Bennison, upon opening the meeting,
stated the Union would not be discussed but only company
business, whereupon Foreman Elthorp brought up some
complaints which employees had pertaining to the bonus
and overtime which they attempted to explain to him. Ben-
nison denied any mention was made to Elthorp about the
employees putting in for overtime if they worked but stated
he mentioned it was Respondent's policy discussed infra to
pay overtime. The bonus which was being phased out had
already been explained to all the employees at prior meet-
ings held with them.
I credit the versions of Gorea and Bennison concerning
this meeting rather than that of Elthorp, who not only con-
tradicted his own testimony but did not impress me as a
credible witness. Therefore I do not find, as General Coun-
sel contends, that Elthorp was either solicited by or acted
as Respondent's agent when he subsequently talked to the
employees about their complaints.
Robert L. Williams testified that on or about July 3 at the
Inter-Royal plant Personnel Manager'Renshaw asked him
why the employees had gone to the union hall and who was
involved. Renshaw also informed him that Benison had
told him if the Union got in he (Renshaw) was through.
Williams claimed when he asked Renshaw why they had
rehired Charlie Wheeler, who had been fired, for his route
Renshaw replied it was because they had known about the
Union ahead of time because he was a squealer and had told
them everything that was going on. Renshaw mentioned
since they had been to school together and he had given.him
a job and George Elthorp a foreman's job they should have
said something to him about the union meetings.
Renshaw admitted asking Williams if a union was being
formed and the reason and that Williams had told him he
had been to the union meeting. Renshaw stated he had
probably expressed he felt a union was being formed and
they didn't need the extra headache and all the board of
directors would have to do to dump the Company was to
have a high bid. Both Renshaw and Benison denied Ren-
shaw was ever told he would be discharged because of the
Union.
Based upon Williams' Testimony and Renshaw's admis-
sions, I find that Renshaw coercively interrogated Williams
concerning his union activities and those of other employ-
ees. However, I do not find Bennison had threatened to
discharge Renshaw or that such an alleged threat was relat-
ed to Williams. With respect to the remarks concerning
Charlie Wheeler, which I do not credit, it was not estab-
lished Wheeler, who was not employed on June 30, was
either employed by the Respondent when the Union began
organizing or was active in the Union.
Edward Krisch stated that on July 3 during a conversa-
tion with Personnel Manager Renshaw at the MDS plant,
Renshaw had asked him if he had been to a prior union
meeting and told him they should have gone to management
before going to the union meeting. Renshaw admitted ask-
ing Krisch if he had been to a union meeting the previous
week and why he didn't come to him or management to get
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his problems ironed out.
Based on Kirsch 's testimony and Renshaw 's admissions,
I find that Renshaw coercively interrogated Krisch con-
cerning his union activities.
Donald Elthorp testified that on July 1 during a conversa-
tion with Personnel Manager Renshaw at the Remington
Arms Plant , Renshaw asked him if he had attended a union
meeting, which other employees had attended , who the
planners were , and whether he had signed anything for the
Union. Renshaw also mentioned Bennison had telephoned
him the previous night and was very angry about their hav-
ing gone to the Union, saying that if the employees had
grievances they should come to management to have them
straightened out. When Renshaw inquired what his griev-
ances were , Elthorp replied the bonus' being phased out and
not being paid time-and-a-half. Renshaw also mentioned he
didn't know what the board of directors would think about
their going to the Union. Elthorp stated Renshaw further
said the Company was thinking about possibly getting rid
of three or four different employees including his brother,
Foreman George Elthorp, Chuch Schierholtz, and Bobby
Williams . When Elthorp asked the reason , Renshaw replied
because of the way they were doing their jobs. Renshaw's
version was that he asked Elthorp if he had been to a union
meeting and the reason and what seemed to be the problem
why employees did not come to management first which
had always resolved their problems before . Renshaw denied
Elthorp told him what the problems were or that he had
asked him who the planners were . Renshaw acknowledged
telling Elthorp he had talked to Bennison , who was quite
upset about the employees having gone to the Union rather
than to management with their complaints.
Based upon Elthorp's testimony and Renshaw 's admis-
sions , I find that Renshaw coercively interrogated Elthorp
concerning his union activities and those union activities of
other employees . I do not find , however , that those state-
ments attributed to Renshaw by Elthorp were sufficient to
constitute a threat.
Robert L. Williams stated that on or about July 7 during
a conversation which he had requested with General Man-
ager Gorea at the Ilion facility he told Gorea he thought the
reason "Butch" Holden was discharged was because of
union activity. After Gorea had denied it, Williams stated
he would stick together with the rest of the employees and
told Gorea that the first one who had approached him was
George Elthorp and Gorea could ask anybody who would
tell him the same thing. Gorea stated Union or no Union
the Company was going to run the way they wanted to run
it, and , while they could live with it, they could live better
without it . Williams then related his own experience with
unions . Gorea's version of the conversation was that Wil-
liams came to his office and told him he was unhappy with
his job and didn' t want to join the Union, whereupon he
informed Williams he couldn't talk to him about it because
he was going to get him in a lot of trouble . Gorea acknowl-
edged Williams had told him that Goerge Elthorp had start-
ed the Union. While I credit Williams' version of this
conversation rather than that of General Manager Gorea,
I find the statements about running the Company while
being able to live with the Union too ambiguous to consti-
tute a threat abut the futility of selecting the Union as the
collective-bargaining representative.
Robert L. Williams testified that on July 20, while at
Thurston 's Restaurant where he and General Manager Go-
rea had a couple of beers, Gorea mentioned he thought they
had a union meeting that night, whereupon he replied they
didn 't. Gorea acknowledged that he had asked Williams
whether he was going to a union meeting and when Wil-
liams replied he didn't know there was one Gorea told Wil-
liams he didn 't know either but he thought he had heard a
couple of guys say there was one.
Based upon Williams' testimony and Gorea's admissions
and considered in the light of the interrogation of other
employees , I find that Gorea by questioning Williams about
attending the union meeting coercively interrogated Wil-
liams concerning his union activities.
Robert L. Williams testified that on August 3 prior to
going on vacation , while at the Ilion facility where several
employees were having coffee , he commented to General
Manager Gorea that he didn 't think he would be back for
the election . Gorea responded by saying , "Stay until after
the election and we'll throw you an extra twenty when you
get back after vacation ." According to Williams, Gorea
made the statement jokingly. Although Robert McDowell,
who Williams thought was present , testified, he did not
testify concerning this matter.
General Manager Gorea 's version of the conversation
was that Williams stated he thought he was going to stay
away on his vacation through the vote because he didn't
want to get involved in the union thing . Gorea said that
since Williams was going to Detroit he told him he didn't
blame him because he had been in Detroit a week ago and
the room charges were ridiculous and with Williams' five
children he wasn 't going to get them all in. When something
was said about room charges he stated it was $20 or $25 and
mentioned to Williams , "Why don' t you let me give it to you
and don't show up , you know," whereupon everyone
laughed . Gorea denied it was offered as a bribe.
Upon considering the circumstances under which the
comments were made by Gorea in a discussion initiated by
Williams , who acknowledged Gorea was joking , I do not
find as General Counsel contends that Gorea either prom-
ised Williams a remuneration to refrain from participating
in the election or unlawfully solicited him not to participate
in the election.
Miles Hammond, who was employed as a cashier and not
included in the appropriate unit , stated that about a week
before the election General Manager Gorea informed him
it had come to his attention that Hammond had made a
remark the previous day about Frank Novak's voting in the
election, saying if the men were smart they would vote for
the Union. When Hammond acknowledged having made
such statements ,5 Gorea told him it put them in a bad situa-
tion because he was neither in management or eligible for
the Union and he could not vote or loin. Gorea then in-
formed him he wished Hammond would stop making such
remarks or referring to the Union because it was hurting the
Company . Gorea admitted having informed Hammond he
would like it if Hammond would stop talking to the employ-
5 The previous day Hammond had made such comments to Ronald Gage
who was one of the employees in the appropriate unit
HENNESSY SERVICE CORP.
ees about the Union or anything else concerning the Com-
pany. Gorea stated that he did so after it had been brought
to his attention by Renshaw that Hammond had been ob-
served in huddles with employees discussing the Union.
Based upon Hammond's testimony and Gorea 's admis-
sions , I find that Gorea by instructing Hammond not to
discuss the Union with other employees interfered with
Hammond's right to engage in union activities . Since Ham-
mond was not considered part of management and in the
absence of a valid no -solicitation rule, the fact Hammond
was ineligible to vote in the election would not preclude his
right to engage in those activities protected by the Act.
Robert A . Williams testified that in late July during a
conversation at the Cloverleaf Restaurant where Executive
Vice President Bennison , General Manager Gorea , Ronald
Gage , and himself were having a few drinks , Gorea men-
tioned he was having a few problems with the men who were
complaining , whereupon they started talking about the
Union . Gorea said they would be losing a few things, men-
tioning that the cigarettes would be kept under lock and key
and there would be more security .6 Gorea also asked him
what he thought about the Union , and mentioned that the
employees were making pretty good money and shouldn't
complain . Gorea 's version of the conversation was that
while he was discussing business and a new medical pro-
gram for the employees Williams mentioned his experiences
at his former employer , stating he knew there was a problem
for management but also a problem for the men. Gorea's
reply was that in his case it was not so much a problem
because he was not going to have to choose but the employ-
ees were and he didn't have any choice but added that in
his opinion he didn't believe it was a livable situation for the
Company as structured. Executive Vice President
Bennison 's version was that as far as he knew there was no
discussion concerning the Union.
I credit Gorea 's version of the conversation since he im-
pressed me as a more credible witness than Williams, and
I do not find Gorea made the statements attributed to him
by Williams.
Edward Krisch testified that about the latter part of July
or early August General Manager Gorea called him in the
office and inquired what his problems were. When Krisch
mentioned the bonus plan, Gorea's response was that they
could possibly work something out concerning overtime but
he stated that the Union was definitely out and there
wouldn't be any possibility of doing anything with the
Union. Gorea, who contended Krisch was having some per-
sonal problems and had lost a helper , acknowledged having
called Krisch in the office which he contended occurred
about the first part of July and had asked him what his
problems were . Krisch mentioned the bonus and felt he
couldn ' t handle his job at the MDS plant without overtime
pay and suggested something should be done to rectify the
situation . Gorea 's response was that there was nothing he
could do about the bonus but informed him they were
changing the payroll and he would be paid for working
overtime. According to Gorea, the change in the payroll was
to reflect what the employees were doing.
6 According to Williams, when they needed cigarettes for their work they
were not required to check them out.
269
I credit Krisch's version of the conversation and find that
Gorea, by telling him the Union was definitely out and there
wouldn't be any possibility of doing anything with the
Union, thereby threatened him with the futility of selecting
the Union as the bargaining representative. However I do
not find Gorea promised to pay Krisch additional overtime
but that rather the payroll records would be changed as
discussed infra to reflect the overtime they were receiving.
Robert A. Williams, who was laid off from work for
several days following an incident involving a complaint by
a female employee employed by his former employer, stated
that after he returned to work on or about August 7 he
apologized to Executive Vice President Bennison who told
him not to let it happen again. According to Williams, later
that same day, Bennison told him to try to sway toward
management 's idea on the Union and it would be better for
all. Bennison 's version was that when Williams apologized
to him Williams asked him how he wanted him to vote in
the election whereupon he told Williams it was entirely up
to him.
I credit Bennison's version of the conversation rather
than Williams' who I have previously discredited and find
that Bennison did not make the statements attributed to him
by Williams.
Lawrence Foley testified that on July 1 Executive Vice
President Bennison called him in the office and asked him
what he thought about the thing whereupon Foley's re-
sponse was he would go along with the majority. After a
discussion about things in general, Bennison said, "You
think it over," whereupon he replied he would but said that
as far as he was concerned he doubted he would change his
mind. Bennison , who placed the conversation as occurring
on or about July 3, acknowledged having called Foley in to
see whether he had any information concerning the Union
because Foley was a long-term employee whom he had
talked to on numerous occasions. Bennison admitted that
he had asked Foley if he knew about the Union and stated
it was possible he had asked him why he thought the union
situation was coming up. Bennison could not recall Foley
expressing support for the Union. Based upon Foley's testi-
mony and Bennison 's admissions , I find that Bennison coer-
cively interrogated Foley concerning his union activities.
On the evening of August 3, Lawrence Foley and Robert
McDowell 7 were requested to report to the plant after
working hours where they talked to General Manager Go-
rea. Personnel Manager Renshaw wos also present during
the conversation.
Foley, who arrived first, testified that Gorea shook his
finger at him and told him although it might take time he
was going to fire him one way or the other, Union or no
Union. Foley protested Gorea's conduct, claiming he had a
right to vote for a union if he wanted to. When Gorea asked
him why he wanted to join the Union, his reply was for his
own security, mentioning since other employees were being
laid off or fired there was no reason he couldn't be fired.
Foley stated that when McDowell arrived Gorea said al-
though it would take time he would get rid of both of them
one way or another, whereupon McDowell told him to go
7 Lawrence Foley and Robert McDowell had attended a union meeting
earlier that evening which was the first union meeting Foley had attended.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ahead. Foley stated that when McDowell informed Gorea
he would also join the Union for job security Gorea said he
could fire either one of them as far as job security was
concerned even though it might take a week or 5 weeks.
Foley claimed Gorea also stated he had a man posted at the
union meetings to listen to what was said and accused him
of having started the Union and attending all of the union
meetings . When Foley asked Gorea why he was picking on
him and suggested he bring in some of the employees who
had started the Union, mentioning George Elthorp and
Donald Elthorp, Gorea's response was he would call Bobbie
Williams, which he attempted to do without success.
McDowell's version of the conversation was that as he
entered the office he heard Gorea say something to Foley
about his being a 25-year man and asked Foley why he was
joining the Union. When Foley' s response was for security,
Gorea then asked McDowell why he was joining, whereup-
on he also replied for security. Gorea stated as for security
he could fire them in or out of the Union even though it
might take a week or 5 weeks , but he could get something
on them. When Foley inquired why Gorea didn' t get some
of the other employees in, Gorea suggested he would call
Bobbie Williams and attempted to do so.
General Manager Gorea testified he called McDowell
and Foley in to discuss their excessive overtime claim.
When he told Foley the purpose, Foley' s response was for
him not to think he was going to fire him like he had fired
other employees. Foley stated that since Gorea had come to
the Company nobody's job was secure , which was the rea-
son they had a Union and he was joining. When Gorea
asked how a man with 25 years' service could be worried,
Foley's reply was because of his management he needed
security. Gorea stated that whether Foley did or didn't have
a union if he didn't do his job Gorea would be able to fire
him and told him not to argue security. Foley then accused
Gorea of spying on him which he denied, stating Bobbie
Williams had told him about the meeting. Gorea, at Foley's
request, attempted to call Williams who wasn't home. Go-
rea stated that while they were discussing security, Mc-
Dowell entered and took the side of Foley, saying he also
wanted to join the Union for security, whereupon Gorea
gave McDowell the same explanation about discharging an
employee for not doing his work.
Personnel Manager Renshaw's version was that Gorea
and Foley had a discussion over security and the Union,
with Gorea trying to make Foley understand management
was still going to run the Company and employees could
still be fired if they goofed up whether or not they were
union members. According to Renshaw, Gorea asked both
Foley and McDowell why they wanted to join the Union.
During the meeting , Gorea showed both Foley and Mc-
Dowell their pay records and overtime was discussed.
Based upon the testimonies of Foley and McDowell as
corroborated by Renshaw, I find that Gorea coercively in-
terrogated both Foley and McDowell concerning their rea-
sons for joining the Union. Since Foley's contention that
Gorea had told both he and McDowell that he was actually
going to fire them was not corroborated by McDowell and
denied by both Gorea and Renshaw, by their versions of the
conversation, I do not find Gorea actually threatened to
discharge them as alleged. I further find, based upon Foley's
testimony, that Gorea had accused him of engaging in
union activities and claimed he had a man posted at the
union meeting thereby creating an impression of surveil-
lance of the employees' union activities. In this respect,
Gorea acknowledged another employee, Williams, had told
him about a union meeting. After excusing Foley, Gorea
then talked to McDowell alone. According to McDowell,
when Gorea asked him what his problem was, he mentioned
his Tuesday route. Gorea's response was for him to bear
with them because they were going to change the routes,
taking the factories away from him and Foley to give them
more time to do their routes. McDowell claimed during the
conversation that Gorea said, "On election day, I wish you
wouldn't be there," but told him to do what he had to do.
Gorea in his version of the conversation acknowledged
promising changes in McDowell's route and admitted that
during the conversation he stated to McDowell in his opin-
ion if nobody would show up it would be off his back and
to go away.
Based upon McDowell's testimony, which I credit, and
the partial admissions by Gorea, I find that Gorea promised
McDowell changes in his route for him to refrain from
engaging in union activities and solicited McDowell to re-
frain from participating in the election.
B. The Alleged Change in Paying
Employees for Overtime Work
The employees' normal workweek for pay purposes alter-
nated between 40 hours one week and 44 hours the next
week when they worked 4 hours on Saturdays. However
they were paid on the basis of a 42-hour workweek with time
and a half for the extra 4 hours. Prior to July 1, the overtime
was not distinguished from the regular time on their pay-
checks, apparently causing some confusion concerning
whether they were being paid for overtime work performed.
After July 1, their overtime was reflected separately.
The General Counsel contends that prior to July 1 em-
ployees were not paid for overtime work outside of their
normal workweek. However, because of the Union, after
July 1, Respondent instituted a practice whereby employees
who performed overtime work outside of their normal
workweek could claim overtime by submitting slips for
which they were paid. No records were proffered by Gener-
al Counsel to support this alleged change in practice but
only the testimonies of certain employees. However, Fore-
man Elthorp, who testified concerning the alleged change,
admitted that prior to July 1 he and other employees had
turned in slips for overtime work for which they had been
paid. Robert L. Williams admitted that on one occasion
prior to July 1 he had worked overtime for which he was
paid. While he thought he was not paid at the rate of time
and a half, no figures were submitted to support his belief.
Lawrence Foley acknowledged that several times a year
when he and other employees together worked overtime he
was paid. While Foley, a routeman, claimed he worked
many hours on his own without being paid, he acknowl-
edged that he had not submitted a claim for such work .8
8 The time spent each day by the routemen vanes with some days resulting
in less than 8 hours' work and other days more hours.
HENNESSY SERVICE CORP. 271
Robert McDowell, who was hired in April, also admitted he
had not submitted a claim . Donald Elthorp acknowledged
that prior to July 1 on some occasions when he was asked
to work overtime he was paid for overtime. According to
Elthorp, on another occasion when he was working a half
an hour extra each morning he was told they would straight-
en it out with respect to his pay. While General Manager
Gorea, who assumed his position about June, testified that
a program was instituted to have the foremen present him
with documentation of overtime hours, Executive Vice Pres-
ident Bennison , Personnel Manager Renshaw, and himself
all testified that it had always been Respondent's policy to
pay employees for overtime work performed outside their
normal workweek. In support of the testimonies of Gorea,
Bennison , and Renshaw, the payroll records submitted for
two of General Counsel's witnesses, namely Edward Krisch
and Donald Elthorp,9 established that prior to July 1 they
had been paid for overtime work performed outside their
normal workweek.
Based upon the testimonies of Bennison, Renshaw, and
Gorea, corroborated in part by Respondent's records in
addition to the admissions of General Counsel's own wit-
nesses that prior to July 1 they had been paid for overtime
work performed outside their normal workweek, I do not
find, as General Counsel contends, that there is sufficient
evidence to establish that the Respondent changed its prac-
tice concerning the payment for overtime work.
C. The Alleged Discriminatory Changes
in the Working Conditions of
Lawrence Foley and Edward Krisch
The General Counsel contends the Respondent by pro-
hibiting Lawrence Foley from continuing to take his com-
pany truck home each night and by requiring Edward
Knsch to cease using his personal automobile in his work
but instead use a company truck did so for discriminatory
reasons under the Act.
Lawrence Foley, who now lives approximately three
blocks from the plant, had for approximately 20 years been
taking his truck home from work each day where it re-
mained parked and locked overnight in his yard. Merchan-
dise valued at approximately $1,500 which was loaded on
the truck each evening, in addition to tools, were kept in the
truck overnight. Foley would then leave for work directly
from his home rather than first reporting to the plant.
On July 3, without prior notice, Foley was instructed by
Foreman Elthorp, acting on Executive Vice President
Bennison 's orders, that he would no longer be able to take
his truck home unless he was on duty but would be required
to keep it at the plant in the secured area . Since that time
Foley has been allowed to take his truck home approximate-
ly 3 days a week when he is on repair call or on the day of
his long route when he returns late. Respondent's other
trucks, which now total nine , have always been kept parked
at the plant overnight.
Bennison testified that, upon learning Foley was taking
9 To the extent their payroll records show more overtime claims submitted
after July 1, these specific claims which General Manager Gorea subsequent-
ly questioned in Krisch's case were not specifically litigated
his truck home which he discovered one night while count-
ing the trucks, he left instructions for Foley to keep the truck
at the plant. His reason was for security purposes. About the
latter part of June, as a result of vandalism, Respondent had
completed the erection of a fence 10 around the plant pro-
perty which has a gate that is kept locked at night and the
black-topped parking area is kept lighted.
On August 11, the day following the election, Edward
Krisch, who had served as an observer for the Union in the
election,lI without prior notice was instructed by Foreman
Elthorp, acting on General Manager Gorea's orders, to
cease using his personal automobile in his work and instead
use a company truck which he has since been doing. Prior
thereto Krisch for approximately 2-1/2 years had been us-
ing his personal automobile, a 1967 Rambler convertible, to
transport merchandise from the plant to the Mohawk Data
Sciences facilities located approximately 5 miles away, for
which he was reimbursed at the time of termination at the
sum of $15 a week. The merchandise was carried in the
trunk and rear seat of his automobile. The truck Krisch now
uses is a 1966 Chevrolet van-type truck with a larger storage
capacity which the Company has had for some time but
which was not being used regularly and for a period was not
in operating condition.
General Manager Gorea stated the change was made
because the Respondent had to insure Krisch's personal
automobile with a $1 million rider and pay his operating
expenses ; the truck Krisch now uses was not being used and
was available; and the necessity to transport a greater
amount of merchandise resulting from the increased volume
of business. Executive Vice President Bennison testified that
sometime in July prior to the change made in August he had
discussed the matter with Gorea and had concurred in
Gorea's analysis whereby the change could save the Re-
spondent money.
While the changes and timing of such changes concerning
the use of vehicles by both Foley, which occurred early in
the Union's organizing campaign, and Krisch, which oc-
curred the day after the election, appear suspect in view of
the long-standing practices involving their uses and
Respondent's expressed union animus and unlawful con-
duct involving both individuals, discussed supra, I credit
Bennison's testimony regarding the reasons for the changes
in addition to the recent completion of the security fence in
Foley's case and I do not find in either case the evidence is
sufficient to either infer an unlawful motive or establish the
changes were made for discriminatory reasons under the
Act. Neither employee had been threatened with such
changes.
D. The Appropriate Bargaining Unit
The amended complaint alleged, Respondent orally
amended its amended answer to admit, and I find, the ap-
propriate bargaining unit as follows:
All full-time and regular part-time routemen, mechan-
10 The erection of the fence was begun prior to the beginning of the
Union's organizing campaign
1 Krisch's role axan observer for the Union was known to Executive Vice
President Bennison, General Manager Gorea, and Personnel Manager Ren-
shaw since they had attended the preelection conference
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ics, and working foremen employed by the Employer
at its 61 Central Avenue, Ilion, New York, facility ex-
cluding all other employees , including office clerical
employees , professional employees , guards , and super-
visors as defined in the Act.
E. The Union's Majority
The parties stipulated the following named employees
were employed in the appropriate bargaining unit discussed
supra, on June 30, July 5, 6, 10, 12, and 13: Donald Elthorp,
George Elthorp, Edward Krisch, Robert McDowell, Robert
A. Williams, Robert L. Williams, Lawrence Foley, Francis
Novak , Ronald Gage , Laval Holden , Sr., Benjamin Sienk-
iewkz, Richard Maury, Charles Schierholtz, and Francis
Hannon . In addition , Charles Wheeler with the exception of
June 30 was employed those same dates and Laval "Butch"
Holden was employed on the morning of June 30 but termi-
nated that same day . Based upon the undisputed testimony
of Executive Vice President Bennison , which I credit , anoth-
er employee, Mitchell Pezdek, who was hired on July 17 and
ran a milk route, was also included in the appropriate unit.
While, according to Bennison 's testimony during June and
July, the Respondent employed a total of approximately 40
to 45 full- and part-time employees, those employees named
above were stipulated to be the only employees employed
in the aforementioned appropriate unit. The job classifica-
tions of those remaining employees were not established by
the evidence.
Among those employees in the appropriate unit, nine had
signed applications for membership cards in the Union in
addition to signing cards authorizing the Union to represent
them and negotiate and conclude agreements with respect
to their hours of employment, wages, and other employment
conditions. Those nine employees were Robert A. Williams,
George Elthorp, Donald Elthorp, Robert McDowell, Rob-
ert L. Williams, Edward Krisch, Francis Novak, Lawrence
Foley , and Laval "Butch" Holden . With the exception of
Francis Novak and Lawrence Foley, who signed their au-
thorization cards on June 30, those other employees signed
their authorization cards on June 29. The authorization
cards of Robert A. Williams, George Elthorp, Donald El-
thorp, Robert McDowell, Robert L. Williams, Edward
Krisch, and Laval "Butch" Holden were authenticated
through the undisputed testimony of the Union's assistant
business agent , Leon Parks , which I credit and the authori-
zation cards of Francis Novak and Lawrence Foley were
authenticated through their undisputed testimony, which I
credit.
Based upon this evidence , I find that on June 30 out of
a total of 14 employees in the appropriate unit, excluding
Laval "Butch" Holden who was discharged that same day,
8 of those employees had authorized the Union to represent
them . Further , when the Union 's initial letter concerning
recognition and bargaining was received by Respondent on
July 6, discussed infra, out of a total of 15 employees in the
appropriate unit 8 had authorized the Union to represent
them. Therefore on these dates the Union, based upon au-
thorization cards , represented a majority of Respondent's
employees in the appropriate unit.
F. The Union's Demand for Recognition
and Bargaining and Respondent's Refusal
On July 5, the Union sent Respondent a letter, received
on July 6, which provided in pertinent part as follows:
This is to notify you we have a large majority of your
employees signed as members of our local union # 182
and they have designated us to represent them as their
bargaining agent.
Please notify me as of date and place that we may meet
to discuss same.
A meeting was held within a few days between represen-
tatives of the Union and the Respondent. Those present for
the Union were its president, Rocco DePerno, who acted as
spokesman, and Assistant Business Agent Parks and for the
Respondent, General Manager Gorea. Phillip Gorea, who
allegedly was related to General Manager Gorea, was also
present.
According to Parks, Gorea was asked to recognize the
Union and negotiate a contract covering the employees.
Gorea's position was that he was not sure whether they
wanted them but he didn't have the authority to make such
an agreement and advised he would present the matter to
Respondent's board of directors which was to meet the
following Monday and if it was all right with them it was
all right with him and he would get back in touch with the
Union. DePerno did not testify.
General Manager Gorea's version was when he asked
President DePerno if the Respondent was bound if in fact
they had a union. DePerno informed him he could either
agree to have the Union represent the employees or go to
a consent election . Despite his inquiries concerning what
consitituted the majority of which employees the Union
represented, no proof was given. Only one employee, Fore-
man Goerge Elthorp, was discussed by name and Gorea
advised them Elthorp did not have the authority to hire and
fire. According to Gorea, he made it clear that the only
reason for his meeting with them was to get information as
to their position and advised them he would get in touch
with his supervisors for them to make the final decision.
Thereafter on two occasions, the first occurring about
July 11 and the second about a week later, Assistant Busi-
ness Agent Parks contacted General Manager Gorea for
Respondent's decision with respect to recognizing and bar-
gaining with the Union. On the first occasion, Gorea in-
formed Parks the board of directors had not met; however,
on the latter occasion Gorea informed him it was the board
of directors' decision not to recognize the Union but to go
to an election instead.
Based upon the Union's July 5 letter and the above con-
versations between the representatives of the Union and the
Respondent, I find the Union demanded recognition and
bargaining which Respondent refused, insisting upon an
election.
No further demands for recognition or bargaining were
made.
On July 10 the Union filed a petition in Case 3-RC-5502,
seeking to represent a unit comprised of 14 employees de-
scribed as follows:
Included: routemen, working foremen, and mechanics;
excluded: all other employees, office personnel, etc.
HENNESSY SERVICE CORP.
On July 24, a Stipulation for Certification Upon Consent
Election in Case 3-RC-5502 previously signed by the par-
ties were approved by the Regional Director for Region 3
and an election was held on August 10 between the hours
4 p.m. to 5 p.m., for those employees in the appropriate unit
described supra. On the day of the election but prior to the
election being held, the initial unfair labor practice charge
in the instant case was filed. The ballots cast by the employ-
ees in the election were not counted but were instead im-
pounded by the Regional Director and at the time of the
hearing remained impounded.
While the evidence established the Union did not in its
requests for recognition and bargaining specifically define
the unit it was seeking to represent, the petition received by
the Respondent did apprise it of the unit sought.
G. Analysis and Conclusions
General Counsel contends, while Respondent denies, that
Respondent violated Section 8(a)(1), (3), and (5) of the Act
by engaging in unlawful interrogations, threats, solicita-
tions, promises; creating impressions of surveillance of
employee's union activities; granting economic benefits;
making unlaw statements; discriminatorily changing the
working conditions of Lawrence Foley and Edward Krisch;
and unlawfully refusing to recognize and bargain with the
Union.
Based upon my findings supra, I have already found that
Personnel Manager Renshaw coercively interrogated Rob-
ert L. Williams and Donald Elthorp concerning their union
activities and those union activities of other employees; and
coercively interrogated Edward Krisch concerning his
union activities. General Manager John Gorea coercively
interrogated Robert L. Williams about attending a union
meeting; interfered with Miles Hammond's right to engage
in union activities by unlawfully instructing him not to dis-
cuss the Union with other employees; threatened Edward
Krisch with the futility of selecting the Union as the bar-
gaining representative; coercively interrogated Lawrence
Foley and Robert McDowell concerning their reasons for
joining the Union; created an impression of surveillance of
employees' union activities by accusing Lawrence Foley of
engaging in union activities and claiming he had a man
posted at the union meeting; promised Robert McDowell
changes in his route for him to refrain from engaging in
union activities; and solicited Robert McDowell to refrain
from participating in the election. Executive Vice President
Robert Bennison coercively interrogated Lawrence Foley
concerning Foley's union activities.
I find that Respondent by each of these acts enumerated
and found above has interfered with, restrained, and
coerced those employees herein named in the exercise of
their rights under Section 7 of the Act and thereby violated
Section 8(a)(1) of the Act.12
With respect to the allegations that the Respondent vio-
lated Section 8(a)(3) 13 and (1) of the Act by discriminatorily
12 Sec. 8(a)(l) of the Act prohibits an employer from interfering with,
restraining , or coercing employees in the exercise of the rights guaranteed in
Sec. 7 of the Act
13 Sec. 8(a)(3) of the Act provides in pertinent part "It shall be an unfair
273
changing the working conditions of Lawrence Foley and
Edward Krisch concerning the use of vehicles in their work,
I have already found supra the evidence did not establish
such changes were for discriminatory reasons under the Act.
In addition, with respect to certain other alleged violations
of Section 8(a)(1) of the Act including the alleged change in
the practice of paying employees overtime for work per-
formed outside their normal workweek, I have already
found supra the evidence did not prove such allegations.
The remaining issue to be decided is whether the Respon-
dent violated Section 8(a)(5) and (1) of the Act by its refusal
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of certain of its em-
ployees. Based upon my findings supra, the Union, which at
one time based upon authorization cards represented a ma-
jority of Respondent's employees in an appropriate unit,
demanded recognition and bargaining for them whereupon
Respondent refused insisting upon an election.
Under those general principles enunciated by the Su-
preme Court in Gissel 14 applicable to the issuance of bar-
gaining orders such orders are authorized to redress those
unfair labor practices so coercive that even in the absence
of an 8(a)(5) violation, a bargaining order would be neces-
sary to repair the unlawful effects of such unfair labor prac-
tices and in those less extraordinary cases marked by less
persuasive practices which nonetheless still have the tenden-
cy to undermine majority strength and impede the election
process. In the latter instance, the Board is to examine the
nature and extent of the employer's unlawful conduct and
ascertain whether use of traditional remedies would ensure
a fair election. The General Counsel contends a bargaining
order is warranted in the instant case on either basis. Under
Gissel a third category of cases, those involving minor or less
extensive unfair labor practices which because of their mini-
mal impact on the election machinery, will not sustain a
bargaining order.
Upon examining the totality of Respondent's unlawful
conduct herein found, there was a total of approximately
seven separate incidents, primarily consisting of individual
acts of interrogation, involving five employees in the appro-
priate unit. Applying the Gissel principles, I am not persuad-
ed and so find a sufficient basis for issuing a bargaining
order has been proven. Those violations found are not so
coercive as to require a bargaining order to repair the un-
lawful effects or of such a nature or extent the application
of traditional remedies would not be able to ensure a fair
election." Therefore, I find Respondent by its refusal to
recognize and bargain with the Union did not violate Sec-
tion 8(a)(5) and (1) of the Act as alleged.
Having found Respondent did not unlawfully refuse to
recognize and bargain with the Union, I do not find it
necessary to determine whether under the requirements of
the Board's decision in Irving Air Chute Company Inc.,`
which provide for the issuance of a bargaining order where
an election has been held only if the election has been set
labor practice for an employer . by discrimination in regard to hire or
tenure of employment or any terms or conditions of employment to encour-
age or discourage membership in any labor organization....'
14 N L R B v Gissel Packing Co, Inc, 395 U S 575 ( 1969).
15 Cf. Motown Record Corporation, 197 NLRB 1255.
16 149 NLRB 627
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside upon meritorious objections, the issuance of such an
order in the instant case wherein the employees had cast
their votes in an NLRB-conducted election would be pre-
cluded.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
rights under the Act, Respondent shall be ordered to cease
and desist from "in any manner" infringing upon the rights
guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
The activities of Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Hennessy Service Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Warehousemen and Helpers, Local No.
782, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By coercively interrogating its employees concerning
their union activities and the union activities of other em-
ployees; unlawfully instructing an employee not to discuss
the Union with other employees; creating an impression
among its employees that the union activities are under
surveillance; by promising an employee changes in his route
for him to refrain from engaging in union activities; by
soliciting an employee to refrain from participating in the
election; and by threatening an employee with the futility
of selecting the Union as the bargaining representative, Re-
spondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act, and has engaged in unfair labor practices
in violation of Section 8(a)(l) of the Act.
4. Respondent did not violate Section 8 (aX3) and (1) of
the Act by changing the working conditions of Lawrence
Foley or Edward Krisch.
5. Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the
Union.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
of the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the policies of the Act.
Further upon considering the circumstances and those
violations found in order to insure the employees of their
ORDER 17
Respondent, Hennessy Service Corporation, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employ-
ees by coercively interrogating its employees concerning
their union activities or the union activities of other employ-
ees; unlawfully instructing its employees not to discuss
the Union with other employees; creating an impression
among its employees that their union activities are under
surveillance; promising its employees changes in their
routes for them to refrain from engaging in union activities;
soliciting its employees to refrain from participating in an
election; and threatening its employees with the futility of
selecting the Union as their bargaining representative.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its place of business located at Ilion, New
York, copies of the notice attached hereto marked "Appen-
dix." 18 Copies of said notice, on forms provided by the
Regional Director for Region 3, shall, after being duly
signed by an authorized representative of Respondent, be
posted immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Respondent shall take reasonable steps
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order what steps have
been taken to comply herewith.
It is further ordered that the amended complaint be dis-
missed msofar as it alleges unfair labor practices not specifi-
cally found herein.
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1s In the event that the Board's 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."
HENNESSY SERVICE CORP. 275
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce our
employees by coercively interrogating them concerning
their union activities or the union activities of other
employees; unlawfully instructing employees not to
discuss the Union with other employees; creating an
impression among our employees that their union ac-
tivities are under surveillance; promising our employ-
ees changes in their routes for them to refrain from
engaging in union activities ; soliciting our employees
to refrain from participating in an election; or threaten-
ing our employees with the futility of selecting the
Union as their bargaining representative.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
right to self-organization , to form labor organizations,
to join or assist Chauffeurs, Warehousemen and Help-
ers, Local No . 182, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in collective bargaining or
other mutual aid or protection , or to refrain from en-
gaging in any or all such activities , except to the extent
that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condi-
tion of employment in accordance with Section 8(a)(3)
of the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
Dated By
HENNESSY SERVICE CORPORA.
TION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Ninth Floor, Federal Building, 111
West Huron, Buffalo, New York, 14202, Telephone 716-
842-3100.